EXHIBIT 10.36
AASTROM BIOSCIENCES, INC.
SUBSCRIPTION AGREEMENT
AASTROM Biosciences, Inc.
Domino's Farms, Lobby L
24 Xxxxx Xxxxx Xxxxxx Xxxxx
X.X. Xxx 000
Xxx Xxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxx, Ph.D.
Gentlemen:
1. Subscription. The undersigned (the "undersigned" or the
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"Purchaser"), hereby agrees and subscribes to purchase from AASTROM Biosciences,
Inc., a Michigan corporation (the "Company"), ________ shares (the "Shares") of
the Series D Preferred Stock of the Company (the "Series D Stock") at a purchase
price of $4.00 per Share, for an aggregate purchase price of $________ (the
"Purchase Price"). This subscription is submitted to you in accordance with and
subject to the terms and conditions described in this Subscription Agreement and
the Memorandum (as defined in Section 5.c.) relating to the offering (the
"Offering") by the Company of up to 2,500,000 shares of Series D Stock.
2. Subscription and Payment. The undersigned is returning to
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the Company two signed and completed copies of this Subscription Agreement,
together with payment of the Purchase Price. Payment of the Purchase Price is
being made by delivery to the Company of a check payable to the order of the
Company, or by wire transfer of the Purchase Price to the Company. At any time
on or after April 14, 1995, upon receipt by the Company of valid subscriptions
to purchase at least $2,000,000 of Series D Stock, the Company will schedule a
closing (the "Closing") for the purchase and sale of such shares. As soon as
practicable after the Closing, the Company shall issue and deliver to the
undersigned a stock certificate or certificates, registered in the name of the
undersigned, representing the Shares being purchased. After the Closing, the
Company may accept subscriptions for additional shares of Series D Stock as they
are received.
3. Acceptance of Subscription. The undersigned understands and
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agrees that the Company in its sole discretion reserves the right to accept or
reject this subscription for the Shares. The Company shall have no obligation
hereunder until the Company shall execute and deliver to the undersigned an
executed copy of this Subscription Agreement. This Subscription Agreement shall
continue in full force and effect to the extent this subscription was accepted.
4. Stock Registration Rights. The undersigned shall have the
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stock registration rights as have been granted pursuant to Sections 2.4 through
2.14 of that certain Amended and Restated Investors' Rights Agreement dated
April 7, 1992 by and among the Company and certain investors and shareholders of
the Company, attached hereto as Exhibit A.
5. Representations and Warranties. In order to induce the
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Company to sell the Shares to the undersigned, the undersigned hereby
acknowledges, represents, warrants and agrees as follows:
a. None of the Shares of Series D Stock are (and the
shares of common stock issuable upon conversion thereof ("Underlying Common
Stock") will not be) registered under the Securities Act of 1933 (as amended,
the "Securities Act") or any state securities laws. The undersigned understands
that the sale of the Shares is intended to be exempt from registration under
Section 4(2) of the Securities Act and/or the provisions of Regulation D
promulgated thereunder, based, in part, upon the representations, warranties and
agreements contained in this Subscription Agreement;
b. Neither the Securities and Exchange Commission nor any
state securities commission has approved any of the Shares or passed upon or
endorsed the merits of this transaction;
c. Prior to its execution of this Subscription Agreement,
the undersigned has received from the Company (i) the Confidential Private
Placement Memorandum of the Company dated April 5, 1995 (together with any
exhibits thereto, the "Memorandum"), which supersedes in its entirety the draft
Memorandum previously delivered to the undersigned, (ii) a copy of the amendment
to the Restated Articles of Incorporation of the Company, for the purpose of
creating the Series D Stock, and (iii) the audited financial statements of the
Company for the years ended June 30, 1994, 1993 and 1992, the unaudited
financial statements of the Company for the month ended January 31, 1995, and
the unaudited balance sheet of the Company at February 28, 1995.
d. The undersigned acknowledges that all documents,
records and books pertaining to the investment in the Shares, including the
Memorandum, have been made available for inspection by the undersigned, or by
its attorney, accountant, purchaser representative and/or tax advisor
(collectively, the "Advisors") and that the undersigned and/or its Advisors have
completed such review as they deem to be necessary to make the decision to
purchase the Shares;
e. The undersigned has reviewed the merits and risks of an
investment in the Shares. The undersigned and the Advisors have had a
reasonable opportunity to ask questions of and receive answers from members of
management of the Company concerning the offer and sale of the Shares and all
such questions have been answered to the full satisfaction of the undersigned;
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f. In evaluating the suitability of an investment in the
Company, the undersigned has not relied upon any representation or other
information (oral or written) other than as contained in documents or answers to
questions so furnished to the undersigned or its Advisors by the Company;
g. No oral or written representations have been made or
oral or written information furnished to the undersigned or its Advisors in
connection with the Offering which were in any way inconsistent with the
information provided to the undersigned or its Advisors, including the
Memorandum.
h. The undersigned, together with the Advisors, have such
knowledge and experience in financial, tax and business matters so as to enable
each of them to utilize the information made available to each of them in
connection with the purchase of the Shares to evaluate the merits and risks of
an investment in the Shares and to make an informed investment decision with
respect thereto;
i. The undersigned is not relying on the Company with
respect to the tax and other economic considerations of an investment in the
Shares, and the undersigned has relied on the advice, or has consulted with,
only its own Advisors concerning tax matters;
j. The undersigned is acquiring the Shares solely for its
own account, for investment, and not with a view to or for subdivision, resale
or distribution, in whole or in part, and no other person has or will have a
direct or indirect beneficial interest in the Shares, other than for any partner
or shareholder owners of the undersigned, if any;
k. The undersigned must bear the economic risk of the
investment indefinitely because none of the Shares of Series D Stock (or shares
of the underlying Common Stock) may be sold, hypothecated or otherwise disposed
of unless (i) subsequently registered under the Securities Act and applicable
state securities laws, or (ii) an exemption from registration is available.
Legends shall be placed on the Shares (and the shares of Underlying Common
Stock) to the effect that they have not been registered under the Securities Act
or applicable state securities laws and appropriate notations thereon will be
made in the Company's stock books;
l. The undersigned has adequate means of providing for the
undersigned's current financial needs and foreseeable contingencies and the
undersigned can accept the fact that an investment in the Shares will not be
liquid;
m. The undersigned is aware that an investment in the
Shares involves a number of very significant risks and, in particular,
acknowledges that the Company is in the development stage. The undersigned
understands that the risks associated with an investment in the Shares could
result in, and the undersigned can sustain, a complete loss of its investment;
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n. The undersigned is an "accredited investor" as such
term is defined in the regulations promulgated under the Securities Act, and has
completed and signed the Accredited Investor Certification attached as Exhibit B
hereto supporting this conclusion;
o. The undersigned represents that it has full power and
authority to execute and deliver this Subscription Agreement and all other
related agreements and certificates and to carry out the provisions hereof and
thereof and to purchase and hold the Shares, and this Subscription Agreement is
a legal, valid and binding obligation of the undersigned. The execution and
delivery of this Subscription Agreement will not violate or be in conflict with
any order, judgment, injunction, agreement or controlling document to which the
undersigned is a party or by which it is bound;
p. The undersigned represents to the Company that the
information contained herein is complete and accurate and may be relied upon by
the Company in determining the availability of an exemption from registration
under federal and state securities laws. The undersigned further represents and
warrants that it will notify the Company immediately upon the occurrence of any
material change to the information contained herein occurring prior to the
Company's issuance of the Shares;
q. The undersigned is unaware of, and in no way relying
on, any form of general solicitation or general advertising in connection with
the offer and sale of the Shares.
6. Compliance with Regulation D and Applicable State Securities
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Laws. The undersigned understands and agrees that the following restrictions
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and limitations are applicable to its purchase of the Shares and any resales,
mortgages, pledges, hypothecations, or other transfers thereof, pursuant to
Regulation D under the Securities Act and applicable state securities laws:
a. The undersigned agrees that the Shares may not be sold,
mortgaged, pledged, hypothecated or otherwise transferred unless the Shares are
registered under the Securities Act and applicable state securities laws or are
exempt from registration thereunder.
b. A legend in substantially the following form will be
placed on the certificate(s) evidencing the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT, AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
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HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF
1933, OR UNLESS AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
c. FOR CALIFORNIA RESIDENTS ONLY: THE SALE OF THE SECURITIES THAT
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IS THE SUBJECT OF THIS SUBSCRIPTION AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS AN EXEMPTION FROM SUCH
QUALIFICATION IS AVAILABLE. THE RIGHTS OF ALL PARTIES TO THIS SUBSCRIPTION
AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN
EXEMPTION THEREFROM BEING AVAILABLE.
7. Board Observer Rights. The holders of a majority of
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shares of Series D Preferred Stock shall have the right from time to time to
designate one representative, who shall be entitled to attend all meetings of
the Board of Directors, in a nonvoting observer capacity only. The Company will
give such representative copies of all materials that it provides to its
directors; provided, however, that such representative shall be reasonably
acceptable to the Company and shall enter into a confidentiality agreement
acceptable to the Company.
8. Irrevocability; Binding Effect. The undersigned hereby
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acknowledges and agrees that the subscription hereunder is irrevocable by the
undersigned, except as required by applicable law, and that this Subscription
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, legal representatives, and permitted assigns.
9. Modification. This Subscription Agreement shall not be
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modified or waived except by an instrument in writing signed by the party
against whom any such modification or waiver is sought.
10. Notices. A notice or other communication required or
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permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt to the
party to whom it is to be given (a) if to the Company, at the address set forth
above, or (b) if to the undersigned, at the address set forth on the signature
page hereof (or, in either case, to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section 10). Any
notice or other communication shall be deemed given at the time it is received
at the party's address.
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11. Assignability. This Subscription Agreement and the
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rights,interests and obligations hereunder are not transferable or assignable by
the undersigned, except to an affiliate of the undersigned who qualifies as an
"accredited investor," and the undersigned further agrees that the transfer or
assignment of the Shares shall be made only in accordance with all applicable
laws.
12. Applicable Law. This Subscription Agreement shall be
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governed by and construed in accordance with the internal laws of the state of
Michigan without regard to its conflicts of laws principles.
13. Blue Sky Qualification. The undersigned's right to
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purchase Shares under this Subscription Agreement is expressly conditioned upon
the exemption from qualification of the offer and sale of the Shares from
applicable federal and state securities laws. The Company shall not be required
to qualify this transaction under the securities laws of any jurisdiction and,
should qualification be necessary, the Company shall be released from any and
all obligations to maintain its offer, and may rescind any sale contracted, in
the jurisdiction.
14. Confidentiality. The undersigned acknowledges and
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agrees that any information or data it has acquired from or about the Company,
not otherwise properly in the public domain, was received in confidence. The
undersigned agrees not to divulge, communicate or disclose, except as may be
required by law or for the performance of this Subscription Agreement, or use to
the detriment of the Company or for the benefit of any other person or persons,
or misuse in any way, any confidential information of the Company, including any
scientific, technical, trade or business secrets of the Company and any
scientific, technical, trade or business materials that are treated by the
Company as confidential or proprietary, including, but not limited to, ideas,
discoveries, inventions, developments and improvements belonging to the Company
and confidential information obtained by or given to the Company about or
belonging to third parties.
15. Miscellaneous.
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a. This Subscription Agreement, together with the
attached stock registration rights, constitutes the entire agreement between the
undersigned and the Company with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings, if any,
relating to the subject matter hereof. The terms and provisions of this
Subscription Agreement may be waived, or consent for the departure therefrom
granted, only by a written document executed by the party entitled to the
benefits of such terms or provisions.
b. The undersigned's representations and warranties made
in this Subscription Agreement shall survive the execution and delivery hereof
and of the Shares.
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c. Each of the parties hereto shall pay its own fees and
expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Subscription Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
d. All pronouns and any variations thereof used herein
shall be deemed to be to the masculine, feminine, neuter, singular or plural as
the identity of the person or persons referred to may require.
e. This Subscription Agreement may be executed in one or
more counterparts each of which shall be deemed an original, but all of which
shall together constitute one and the same instrument. Signatures may be
transmitted by facsimile.
f. Each provision of this Subscription Agreement shall be
considered separable and if for any reason any provision or provisions hereof
are determined to be invalid or contrary to applicable law, such invalidity
shall not impair the operation of or affect the remaining portions of this
Subscription Agreement, so long as the material economic benefits remain
enforceable.
g. Paragraph titles are for descriptive purposes only and
shall not control or alter the meaning of this Subscription Agreement as set
forth in the text.
If the purchaser is an INDIVIDUAL, and if purchased INDIVIDUALLY, as JOINT
TENANTS, as TENANTS IN COMMON, or as COMMUNITY PROPERTY:
____________________________ __________________________
Print Name(s) Social Security Number(s)
____________________________ __________________________
Signature(s) of Purchaser(s)
____________________________ __________________________
Date Address
__________________________
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If the purchaser is a PARTNERSHIP, CORPORATION, or TRUST:
____________________________ __________________________
Name of Partnership, Federal Taxpayer
Corporation or Trust Identification Number
____________________________
Date
By:_________________________ __________________________
State of Organization
Name:_______________________
Title: ______________________ ___________________________
Address
___________________________
SUBSCRIPTION ACCEPTED AND AGREED
this __ day of __________, 1995
AASTROM BIOSCIENCES, INC.
By: ___________________________
R. Xxxxxxx Xxxxxxxxx, Ph.D., President
and Chief Executive Officer
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EXHIBIT B
Accredited Investor Certification
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(Check the appropriate box(es))
___ i. I am a natural person who had individual income of
more than $200,000 in each of the most recent two years or joint
income with my spouse in excess of $300,000 in each of the most
recent two years and reasonably expect to reach that same income
level for the current year;
___ ii. I am a natural person whose individual net worth, or
joint net worth with my spouse, will at the time of purchase of
the Shares be in excess of $1,000,000;
___ iii. The undersigned is an institutional investor
satisfying the requirements of Section 501(a)(1), (2) or (3) of
Regulation D promulgated under the Securities Act;
___ iv. The undersigned is a trust, which trust has total
assets in excess of $5,000,000, which is not formed for the
specific purpose of acquiring the Shares offered hereby and whose
purchase is directed by a sophisticated person as described in
Rule 506(b)(2)(ii) of Regulation D and who has such knowledge and
experience in financial and business matters that it is capable
of evaluating the risks and merits of an investment in the
Shares;
___ v. The undersigned is an entity (other than a trust) in
which all of the equity owners meet the requirements of at least
one of the above subparagraphs.
__________________________________
By:_______________________________
