EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
This agreement is dated October 27, 2004 between
___________________ ("PURCHASER"), and Aastrom Biosciences, Inc., a corporation
incorporated in the State of Michigan (the "COMPANY"), whereby the parties agree
as follows:
The Purchaser shall buy and the Company agrees to sell _________ shares
("SHARES") of the Company's Common Stock at a price of $1.21 per share for a
total amount of $_________. The Purchaser shall also receive a warrant, in the
form of Exhibit A attached hereto, to purchase up to a number of shares equal to
25% of the Shares (or _________ Warrant Shares), an exercise price equal to
$1.74 and a term of exercise equal to four years, with the initial exercise date
being six months from the date of purchase (the "WARRANT"). The Shares, the
Warrant and the Warrant Shares (collectively, the "SECURITIES") have been
registered on a registration statement on Form S-3, File No. 333-108964 (the
"REGISTRATION STATEMENT"), which has been declared effective by the Securities
and Exchange Commission, and remains effective as of the date hereof. A final
Prospectus Supplement will be delivered promptly after funding. The Shares,
Warrant and Warrant Shares are free of restrictive legends and are free of any
resale restrictions.
The Purchaser represents and warrants to the Company:
(a) The Purchaser is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of Delaware.
(b) The Purchaser has the requisite corporate (or other
entity) power and authority to enter into and perform this Agreement and to
purchase the Shares in accordance with the terms hereof.
(c) In making its investment decision in this offering, the
Purchaser and its advisors, if any, have relied solely on the Company's public
filings as filed with the Securities and Exchange Commission.
(d) The Purchaser is purchasing the Shares and Warrant for its
own account as principal, and not with a view towards distribution of such
securities.
(e) The Purchaser is not a registered broker-dealer.
The Purchaser shall wire the purchase amount to the Company to the
account set forth below.
COMPANY WIRE TRANSFER INSTRUCTIONS:
Account Name: Trust Ops Cleveland
Trust Name: Aastrom Biosciences, Inc.
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Trust Number:
ABA #:
Account #:
The Company shall cause its transfer agent to transmit the Shares
electronically to the Purchaser by crediting the account set forth below through
the Deposit Withdrawal Agent Commission system and shall deliver the Warrant to
the Purchaser within 3 business days of receipt of the funds.
PURCHASER DWAC INSTRUCTIONS:
The Company hereby makes the following representations and warranties,
agreements and covenants to and with the Purchaser:
(a) Authorization; Enforcement; No Conflicts. The Company has
the requisite corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and otherwise to
carry out its obligations hereunder and thereunder. The execution and delivery
of each of the Transaction Documents by the Company and the consummation by it
of the transactions contemplated hereby and thereby have been duly authorized by
all necessary action on the part of the Company and no further consent or action
is required by the Company, its Board of Directors or its stockholders. Each of
the Transaction Documents has been (or upon delivery will be) duly executed by
the Company and is, or when delivered in accordance with the terms hereof, will
constitute, the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms. The execution, delivery and
performance of the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby do not and will
not: (i) conflict with or violate any provision of the Company's or any
subsidiary's certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) subject to obtaining the Required
Approvals (as defined below), conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or subsidiary
debt or otherwise) or other understanding to which the Company or any subsidiary
is a party or by which any property or asset of the Company or any subsidiary
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is bound or affected, or (iii) result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Company or a subsidiary is subject
(including federal and state securities laws and regulations), or by which any
property or asset of the Company or a subsidiary is bound or affected; except in
the case of each of clauses (ii) and (iii), such as could not, individually or
in the aggregate: (i) adversely affect the legality, validity or enforceability
of this Agreement, the Warrant, and any other documents or agreements executed
in connection with the transactions contemplated hereunder (the "TRANSACTION
DOCUMENTS"), (ii) have or result in a material adverse effect on the results of
operations, assets, business or financial condition of the Company and the
subsidiaries, taken as a whole, or (iii) adversely impair the Company's ability
to perform fully on a timely basis its obligations under any of the Transaction
Documents (any of (i), (ii) or (iii), a "MATERIAL ADVERSE EFFECT").
(b) Filings, Consents and Approvals; Issuance of Securities.
Neither the Company nor any subsidiary is required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Documents, other than
(i) the filings of a Form 8-K disclosing the transaction contemplated hereby,
(ii) the filing with the SEC of the prospectus supplement required by the
Registration Statement pursuant to Rule 424(b) under the Securities Act of 1933
Act, as amended (the "1933 ACT") (the "PROSPECTUS SUPPLEMENT") supplementing the
base prospectus forming part of the Registration Statement (the "PROSPECTUS"),
(iii) the application(s) to The Nasdaq SmallCap Market (the "PRINCIPAL MARKET")
for the listing of the Purchased Shares and the Warrant Shares for trading
thereon in the time and manner required thereby, and (iv) applicable Blue Sky
filings (collectively, the "REQUIRED APPROVALS"). "PERSON" means an individual
or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind. The Securities are
duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens. The Company has reserved from its
duly authorized capital stock a sufficient number of Warrant Shares to enable it
to comply with its exercise obligations under the Warrants. The issuance by the
Company of the Securities has been registered under the 1933 Act and all of the
Securities are freely transferable and tradable by the Purchaser without
restriction. The Shares and Warrants are being issued pursuant to the
Registration Statement and the issuance of the Shares, the Warrants and the
Warrant Shares has been registered by the Company under the 1933 Act. The
Registration Statement is effective and available for the issuance of the
Securities thereunder and the Company has not received any notice that the SEC
has issued or intends to issue a stop-order with respect to the Registration
Statement or that the SEC otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently, or intends or
has threatened in writing to do so. The "Plan of Distribution" section under the
Registration Statement permits the issuance and sale of the Securities hereunder
and under the Warrants. Upon receipt of the Securities, the Purchaser will have
good and marketable title to such Securities and the
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Shares and, upon exercise of the Warrants, the Warrant Shares will be freely
tradable on the Principal Market. Neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of
any applicable stockholder approval provisions, including, without limitation,
under the rules and regulations of any exchange or automated quotation system on
which any of the securities of the Company are listed or designated, nor will
the Company or any of its subsidiaries take any action or steps that would cause
the offering of the Securities to be integrated with other offerings. Except as
disclosed in the SEC Reports, the Company has not, in the 12 months preceding
the date hereof, received notice from the Principal Market on which the Common
Stock is or has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of the Principal Market.
The Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and maintenance
requirements. The issuance and sale of the Securities hereunder does not
contravene the rules and regulations of the Principal Market and no stockholder
approval is required for the Company to fulfill its obligations under the
Transaction Documents. The Common Stock is currently listed on the Principal
Market.
(c) SEC Reports; Financial Statements. The Company has filed
all reports required to be filed by it under the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 ACT"), including pursuant to Section
13(a) or 15(d) thereof, for the two (2) years preceding the date hereof (the
foregoing materials being collectively referred to herein as the "SEC REPORTS")
on a timely basis or has received a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects
with the requirements of the 1933 Act and the 1934 Act and the rules and
regulations of the SEC promulgated thereunder, and none of the SEC Reports, when
filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Registration Statement and any prospectus included
therein, including the Prospectus and the Prospectus Supplement, complied in all
material respects with the requirements of the 1933 Act and the 1934 Act and the
rules and regulations of the SEC promulgated thereunder, and none of such
Registration Statement or any such prospectus, including the Prospectus and the
Prospectus Supplement, contain or contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the case of any prospectus
in the light of the circumstances under which they were made, not misleading.
The Company is in compliance with the Xxxxxxxx-Xxxxx Act of 2002, and the rules
and regulations promulgated thereunder by all government and regulatory
authorities and agencies. The financial statements of the Company included in
the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto as in
effect at the time of filing. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved ("GAAP"), except as may be otherwise
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specified in such financial statements or the notes thereto, and fairly present
in all material respects the financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments.
(d) Material Changes. Since the date of the latest audited
financial statements included within the SEC Reports, except as specifically
disclosed in the SEC Reports: (i) there has been no event, occurrence or
development that, individually or in the aggregate, has had or that could result
in a Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company's financial
statements pursuant to GAAP or required to be disclosed in filings made with the
SEC, (iii) the Company has not altered its method of accounting or the identity
of its auditors, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock, and (v) the Company has not issued any equity securities to any officer,
director or Affiliate, except pursuant to existing Company stock option and
purchase plans. "AFFILIATE" means any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under Rule
144. "RULE 144" means Rule 144 promulgated by the SEC pursuant to the 1933 Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC having substantially the same effect as such Rule.
(e) Disclosure. The Company confirms that neither it nor any
other Person acting on its behalf has provided the Purchaser or its agents or
counsel with any information that the Company believes constitutes, nonpublic
information. The Company understands and confirms that the Purchaser will rely
on the foregoing representations in effecting transactions in securities of the
Company. All disclosure provided to the Purchaser regarding the Company, its
business and the transactions contemplated hereby, furnished by or on behalf of
the Company are true and correct and do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading.
(f) Disclosure of Transactions and Other Material Information.
The Company shall, on or before 8:30 a.m., New York City Time, on October 27,
2004, issue a press release reasonably acceptable to the Purchaser disclosing
all material terms of the transactions contemplated hereby and complying with
applicable Commission rules. On or before 8:30 a.m., New York City Time, on the
first business day following the execution and delivery of this Agreement, the
Company shall file a Current Report on Form 8-K describing the terms of the
transactions contemplated by the Transaction Documents in the form required by
the 1934 Act, and attaching the form of this Agreement and the Warrant as
exhibits to such filing (including all attachments, the "8-K FILING"). The
Company shall not, and shall cause each of its subsidiaries and each of
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their respective officers, directors, employees and agents, not to, provide the
Purchaser with any material, nonpublic information regarding the Company or any
of its subsidiaries from and after the filing of the press release referred to
in the first sentence of this Section without the express written consent of the
Purchaser. Subject to the foregoing, neither the Company nor the Purchaser shall
issue any press releases or any other public statements with respect to the
transactions contemplated hereby nor shall the Company disclose the name of the
Purchaser in any filing, announcement, release or otherwise without the
Purchaser's consent; provided, however, that the Company shall be entitled,
without the prior approval of the Purchaser, to make any press release or other
public disclosure with respect to such transactions (i) in substantial
conformity with the 8-K Filing and contemporaneously therewith and (ii) as is
required by applicable law and regulations, including the applicable rules and
regulations of the Principal Market (provided that in the case of clause (i) the
Purchaser shall be consulted by the Company in connection with any such press
release or other public disclosure prior to its release).
(g) Additional Issuances of Securities. From the date hereof
through November 30, 2004, the Company will not, directly or indirectly, except
pursuant to its existing employee and director stock and stock option plans
(provided that the Company shall not permit during such period the establishment
of any Rule 10b5-1 plan), and the existing direct stock purchase plan, offer,
sell, grant any option to purchase, or otherwise dispose of (or announce any
offer, sale, grant or any option to purchase or other disposition of) any of its
or its subsidiaries' equity or equity equivalent securities, including without
limitation any debt, preferred stock or other instrument or security that is, at
any time during its life and under any circumstances, convertible into or
exchangeable or exercisable for shares of Common Stock or Options or Convertible
Securities. "OPTIONS" means any rights, warrants or options to subscribe for or
purchase shares of Common Stock or Convertible Securities. "CONVERTIBLE
SECURITIES" means any stock or securities (other than Options) convertible into
or exercisable or exchangeable for shares of Common Stock.
Governing Law; Jurisdiction; Jury Trial. All questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of New
York. Each party hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the State of New York for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any
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manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
Entire Agreement; Amendments. This Agreement supersedes all
other prior oral or written agreements between the Purchaser, the Company, their
affiliates and Persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor any Purchaser makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and the Purchaser. . No provision hereof may be waived other than by
an instrument in writing signed by the party against whom enforcement is sought.
Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one Business Day
after deposit with an overnight courier service, in each case properly addressed
to the party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
Aastrom Biosciences, Inc.
X.X. Xxx 000
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxx Xxxx Xxxx & Friedenrich
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
0
Xxx Xxxxx, XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxxx Xxxx
If to the Purchaser, to its address and facsimile number set
forth on the signature page.
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
Successors and Assigns. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Purchaser, including by merger or consolidation. The Purchaser
shall not assign this Agreement or any rights or obligations hereunder without
the prior written consent of the Company.
No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
Survival. The representations, warranties, agreements and
covenants of the Company and the Purchaser contained herein shall survive the
delivery and exercise of Securities, as applicable.
Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
Indemnification. (i) In consideration of the Purchaser's
execution and delivery of the Transaction Documents and acquiring the Securities
thereunder and in addition to all of the Company's other obligations under the
Transaction Documents, the Company shall defend, protect, indemnify and hold
harmless the Purchaser and each of its partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons'
agents or other representatives (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement)
(collectively, the "INDEMNITEES") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and
damages, and
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expenses in connection therewith (irrespective of whether any such Indemnitee is
a party to the action for which indemnification hereunder is sought), and
including reasonable attorneys' fees and disbursements (the "INDEMNIFIED
LIABILITIES"), incurred by any Indemnitee as a result of, or arising out of, or
relating to (a) any misrepresentation or breach of any representation or
warranty made by the Company in the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (b) any
breach of any covenant, agreement or obligation of the Company contained in the
Transaction Documents or any other certificate, instrument or document
contemplated hereby or (c) any cause of action, suit or claim brought or made
against such Indemnitee by a non-governmental third party (including for these
purposes a derivative action brought on behalf of the Company) and arising out
of or resulting from the execution, delivery, performance or enforcement of the
Transaction Documents other than as a result of the gross negligence or willful
misconduct of the Purchaser. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
(ii) Promptly after receipt by an Indemnitee under this
Section of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving an Indemnified Liability, such
Indemnitee shall, if a claim for indemnification in respect thereof is to be
made against any indemnifying party under this Section, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnitee; provided,
however, that an Indemnitee shall have the right to retain its own counsel at
its own expense. The Indemnitee shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action or
Indemnified Liabilities by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the Indemnitee that
relates to such action or Indemnified Liabilities. The indemnifying party shall
keep the Indemnitee fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying party shall
be liable for any settlement of any action, claim or proceeding effected without
its prior written consent, provided, however, that the indemnifying party shall
not unreasonably withhold, delay or condition its consent. No indemnifying party
shall, without the prior written consent of the Indemnitee, consent to entry of
any judgment or enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnitee of a release from all liability in respect to such
Indemnified Liabilities or litigation. Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnitee with respect to all third parties, firms or corporations relating to
the matter for which indemnification has been made. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnitee under this Section, except to the extent that the
indemnifying party is prejudiced in its ability to defend such action.
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(iii) The indemnification required by this Section shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified
Liabilities are incurred.
(iv) The indemnity agreements contained herein shall be in
addition to (i) any cause of action or similar right of the Indemnitee against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
AGREED AND ACCEPTED:
Aastrom Biosciences, Inc.
By:__________________________________
Name:
Title:
By:_________________________________
Name:
Title:
