As filed with the Securities and Exchange Commission on January 24, 2013

Registration No. 333-    

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

AFFYMAX, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

77-0579396

(State of Incorporation)

 

(I.R.S. Employer Identification No.)

 

Affymax, Inc.

4001 Miranda Avenue

Palo Alto, CA 94304

(650) 812-8700

(Address of principal executive offices)

 

Amended and Restated 2006 Equity Incentive Plan

2006 Employee Stock Purchase Plan

(Full title of the plans)

 

John A. Orwin

Chief Executive Officer

4001 Miranda Avenue

Palo Alto, CA 94304

(650) 812-8700

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Glen Y. Sato, Esq.

Cooley LLP

3175 Hanover Street

Palo Alto, CA 94304

(650) 843-5000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large Accelerated filer o

 

Accelerated filer x

 

 

 

Non-accelerated Filer o

 

Smaller reporting company o

 

 

 

(Do not check if a smaller reporting company)

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities
to be Registered

 

Amount to be
Registered (1)

 

Proposed Maximum
Offering
Price per Share

 

Proposed Maximum
Aggregate
Offering Price

 

Amount of
Registration
Fee

 

Common Stock, par value $0.001 per share

 

1,400,000 shares

(2)

$

20.635

(4)

$

28,889,000.00

 

$

3,940.46

 

Common Stock, par value $0.001 per share

 

175,000 shares

(3)

$

20.635

(4)

$

3,611,125.00

 

$

492.56

 

Total

 

1,575,000

 

N/A

 

$

32,500,125.00

 

$

4,433.02

 

 

 

(1)

Pursuant to Rule 416(a), this Registration Statement shall also cover any additional shares of Registrant’s Common Stock that become issuable under the plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant’s Common Stock.

 

 

(2)

Represents shares of Common Stock reserved for future issuance under the Affymax, Inc. Amended and Restated 2006 Equity Incentive Plan (the “2006 EIP”) pursuant to a provision that provides for automatic annual increases to the 2006 EIP.

 

 

(3)

Represents shares of Common Stock reserved for future issuance under the Affymax, Inc. 2006 Employee Stock Purchase Plan (the “2006 ESPP”) pursuant to a provision that provides for automatic annual increases to the 2006 ESPP.

 

 

(4)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1) of the Securities Act. The proposed maximum aggregate offering price per share and proposed maximum aggregate offering price are calculated using the average of the high and low prices of Registrant’s Common Stock as reported on The Nasdaq Global Select Market on January 17, 2013.

 

 

 


 

PART II

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 1,400,000 and 175,000 shares of the Registrant’s common stock to be issued pursuant to the Registrant’s Amended and Restated 2006 Equity Incentive Plan and 2006 Employee Stock Purchase Plan, respectively.

 

INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

 

The contents of the earlier registration statements relating to the 2006 Equity Incentive Plan and 2006 Employee Stock Purchase Plan, previously filed with the Securities and Exchange Commission on January 5, 2007 (File No. 333-139810), March 18, 2008 (File No. 333-149773), March 17, 2009 (File No. 333-158070), March 4, 2010 (File No. 333-165218) January 21, 2011 (File No. 333-171795) and February 3, 2012 (File No. 333-179378) are incorporated herein by reference and made a part hereof.

 

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ITEM 8.        EXHIBITS

 

Exhibit
Number

 

 

4.1.1

 

Amended and Restated Certificate of Incorporation. (1)

4.1.2

 

Amended and Restated Bylaws. (2)

4.2

 

Specimen Common Stock Certificate. (3)

4.3

 

Amended and Restated Investor Rights Agreement, dated September 7, 2006, by and between the Registrant and certain of its stockholders. (4)

4.4

 

Form of Warrant to Purchase shares of Common Stock. (5)

4.5

 

Form of Warrant to Oxford Finance Corporation to Purchase shares of Common Stock. (6)

4.6

 

Form of Warrant to Silicon Valley Bank to Purchase shares of Common Stock. (7)

5.1

 

Opinion of Cooley LLP.

23.1

 

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.

23.2

 

Consent of Cooley LLP. Reference is made to Exhibit 5.1.

24.1

 

Power of Attorney (included on the signature page hereto).

99.1

 

Amended and Restated 2006 Equity Incentive Plan. (8)

99.2

 

2006 Employee Stock Purchase Plan. (9)

99.3

 

Form of Option Grant Notice and Form of Option Agreement under 2006 Equity Incentive Plan. (10)

99.4

 

Form of Offering Document under 2006 Employee Stock Purchase Plan. (11)

 

(1)                                 Incorporated by reference from Exhibit 3.3 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on November 30, 2006.

 

(2)                                 Incorporated by reference from Exhibit 3.5 to our Form 8-K filed with the Securities and Exchange Commission on September 10, 2007.

 

(3)                                 Incorporated by reference from Exhibit 4.2 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on November 30, 2006.

 

(4)                                 Incorporated by reference from Exhibit 4.4 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on October 2, 2006.

 

(5)                                 Incorporated by reference from Exhibit 4.5 to our Form 8-K filed with the Securities and Exchange Commission on February 19, 2009.

 

(6)                                 Incorporated by reference from Exhibit 4.5 to our Form 10-Q filed with the Securities and Exchange Commission on May 9, 2012.

 

(7)                                 Incorporated by reference from Exhibit 4.6 to our Form 10-Q filed with the Securities and Exchange Commission on May 9, 2012.

 

(8)                                 Incorporated by reference from Exhibit 10.5 to our Form 10-Q filed with the Securities and Exchange Commission on August 8, 2012.

 

(9)                                Incorporated by reference from Exhibit 99.3 to our registration statement on Form S-8 (333-139810) filed with the Securities and Exchange Commission on January 5, 2007, and incorporated herein by reference.

 

(10)                          Incorporated by reference from Exhibit 10.6 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on July 28, 2006.

 

(11)                          Incorporated by reference from Exhibit 10.8 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on December 11, 2006.

 

II-2


 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto, State of California, on January 24, 2013.

 

 

AFFYMAX, INC.

 

 

 

 

 

By:

/s/ John A. Orwin

 

 

John A. Orwin

 

 

Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints JOHN A. ORWIN and HERB CROSS, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John A. Orwin

 

Chief Executive Officer and Member of the Board of Directors (Principal Executive Officer)

 

January 24, 2013

John A. Orwin

 

 

 

 

 

 

 

 

/s/ Herb Cross

 

Chief Financial Officer
(Principal Financial Officer)

 

January 24, 2013

Herb Cross

 

 

 

 

 

 

 

 

/s/ Karin L. Walker

 

Vice President, Finance and Chief Accounting Officer

 

January 24, 2013

Karin L. Walker

 

(Principal Accounting Officer)

 

 

 

 

 

 

 

 

 

 

 

 

/s/ Hollings C. Renton

 

Member of the Board of Directors

 

January 24, 2013

Hollings C. Renton

 

 

 

 

 

 

 

 

 

/s/ John P. Walker

 

Member of the Board of Directors

 

January 24, 2013

John P. Walker

 

 

 

 

 

 

 

 

 

/s/ Kathleen La Porte

 

Member of the Board of Directors

 

January 24, 2013

Kathleen LaPorte

 

 

 

 

 

II-3


 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Keith R. Leonard

 

Member of the Board of Directors

 

January 24, 2013

Keith R. Leonard

 

 

 

 

 

 

 

 

 

/s/ Ted W. Love

 

Member of the Board of Directors

 

January 24, 2013

Ted W. Love

 

 

 

 

 

 

 

 

 

 

 

Member of the Board of Directors

 

 

Daniel K. Spiegelman

 

 

 

 

 

 

 

 

 

/s/ Christi van Heek

 

Member of the Board of Directors

 

January 24, 2013

Christi van Heek

 

 

 

 

 

II-4


 

EXHIBITS

 

Exhibit
Number

 

 

4.1.1

 

Amended and Restated Certificate of Incorporation. (1)

4.1.2

 

Amended and Restated Bylaws. (2)

4.2

 

Specimen Common Stock Certificate. (3)

4.3

 

Amended and Restated Investor Rights Agreement, dated September 7, 2006, by and between the Registrant and certain of its stockholders. (4)

4.4

 

Form of Warrant to Purchase shares of Common Stock. (5)

4.5

 

Form of Warrant to Oxford Finance Corporation to Purchase shares of Common Stock. (6)

4.6

 

Form of Warrant to Silicon Valley Bank to Purchase shares of Common Stock. (7)

5.1

 

Opinion of Cooley LLP.

23.1

 

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.

23.2

 

Consent of Cooley LLP. Reference is made to Exhibit 5.1.

24.1

 

Power of Attorney (included on the signature page hereto).

99.1

 

Amended and Restated 2006 Equity Incentive Plan. (8)

99.2

 

2006 Employee Stock Purchase Plan. (9)

99.3

 

Form of Option Grant Notice and Form of Option Agreement under 2006 Equity Incentive Plan. (10)

99.4

 

Form of Offering Document under 2006 Employee Stock Purchase Plan. (11)

 

(1)                                 Incorporated by reference from Exhibit 3.3 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on November 30, 2006.

 

(2)                                 Incorporated by reference from Exhibit 3.5 to our Form 8-K filed with the Securities and Exchange Commission on September 10, 2007.

 

(3)                                 Incorporated by reference from Exhibit 4.2 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on November 30, 2006.

 

(4)                                 Incorporated by reference from Exhibit 4.4 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on October 2, 2006.

 

(5)                                 Incorporated by reference from Exhibit 4.5 to our Form 8-K filed with the Securities and Exchange Commission on February 19, 2009.

 

(6)                                 Incorporated by reference from Exhibit 4.5 to our Form 10-Q filed with the Securities and Exchange Commission on May 9, 2012.

 

(7)                                 Incorporated by reference from Exhibit 4.6 to our Form 10-Q filed with the Securities and Exchange Commission on May 9, 2012.

 

(8)                                 Incorporated by reference from Exhibit 10.5 to our Form 10-Q filed with the Securities and Exchange Commission on August 8, 2012.

 

(9)                                 Incorporated by reference from Exhibit 99.3 to our registration statement on Form S-8 (333-139810) filed with the Securities and Exchange Commission on January 5, 2007, and incorporated herein by reference.

 

(10)                          Incorporated by reference from Exhibit 10.6 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on July 28, 2006.

 

(11)                         Incorporated by reference from Exhibit 10.8 to our registration statement on Form S-1/A (File No. 333-136125) filed with the Securities and Exchange Commission on December 11, 2006.

 

II-5