Exhibit 10.42
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AMENDMENT TO
STOCK PURCHASE AGREEMENT
This Amendment is made as of April 23, 1997 (the "Effective Date") to that
certain Stock Purchase Agreement (the "Agreement") dated January 8, 1996 by and
among Aastrom Biosciences, Inc., a Michigan corporation (the "Company"), SBIC
Partners, L.P. and the State Treasurer of the State of Michigan (together, the
"Investors").
Recitals
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A. Pursuant to Sections 7.2 and 7.5 of the Agreement, the Company (i)
agreed to comply with the covenants (the "Covenants") of Section 3 of that
certain Amended and Restated Investors' Rights Agreement (the "Rights
Agreement") dated April 7, 1992 by and among the Company and certain
shareholders of the Company (the "Shareholders") with respect to the Investors,
and (ii) granted the Investors the rights and benefits of the right of first
refusal of Section 4.1 of the Rights Agreement to purchase a pro rata share of
New Securities (as defined in the Rights Agreement) that may be issued from time
to time by the Company (the "Right of First Refusal").
B. The Covenants provide the following:
(i) the Company shall provide certain financial and other
information to the Investors (Sections 3.1, 3.2 and 3.4 of the Rights
Agreement);
(ii) the Investors shall have certain rights of inspection (Section
3.3 of the Rights Agreement); and
(iii) the Company shall enter into certain proprietary information
agreements with its employees (Section 3.6 of the Rights Agreement) and maintain
certain insurance (Section 3.7 of the Agreement).
C. On February 7, 1997 and March 10, 1997, the Company issued and sold an
aggregate of 3,250,000 shares of its common stock ("Common Stock") at an initial
offering price per share of $7.00 in a firmly underwritten public offering
registered under the Securities Act of 1933, as amended (the "IPO").
D. The Right of First Refusal provides that it will terminate upon the
closing of a firmly underwritten public offering of Common Stock at a per share
price of at least $7.50 (as adjusted to reflect the two-for-three reverse split
of the Common Stock effective January 22, 1997).
E. In light of the Company's completion of the IPO and in order to
facilitate
the Company's access to capital markets, the Company has recommended to the
Investors and the Shareholders that it is in the best interests of the Company
and its shareholders to terminate the Right of First Refusal.
F. In light of the Company's status as a public company, the Company has
recommended to the Investors and the Shareholders that it is in the best
interests of the Company and its shareholders to terminate certain of the
Covenants.
G. Whereas, with respect to the Shareholders, the Covenants and the Right
of First Refusal will terminate upon the execution of that certain amendment to
the Rights Agreement dated as of an even date herewith by the holders of a
majority of the then outstanding Registrable Securities (as defined in the
Rights Agreement).
Agreement
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NOW, THEREFORE, in consideration of the foregoing and the anticipated
benefits to the Company and its shareholders, and in consideration of the other
Investor entering into this Amendment and the Shareholders implementing similar
amendments with respect to the Rights Agreement, the Investors and the Company
hereby agree as follows:
1. Termination. The following provisions of the Rights Agreement, as
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incorporated into the Agreement pursuant to Sections 7.2 and 7.5 of the
Agreement, shall terminate immediately and shall have no further force or
effect:
Section 3.1: Financial Information;
Section 3.2: Other Information;
Section 3.3: Inspection Rights;
Section 3.4: Assignment of Rights to Information;
Section 3.6: Employee Agreements;
Section 3.7: Insurance; and
Section 4.1: Right of First Refusal.
2. Effectiveness. This Agreement shall have no effect unless and until
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the Company and the Shareholders execute a similar agreement amending the Rights
Agreement to terminate certain of the Covenants and the Right of First Refusal.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered as of the date first set forth above.
THE COMPANY:
AASTROM BIOSCIENCES, INC.,
a Michigan corporation
By: /s/ R. Xxxxxxx Xxxxxxxxx
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R. Xxxxxxx Xxxxxxxxx, Ph.D.
President and Chief Executive Officer
THE INVESTORS:
SBIC PARTNERS, L.P.
By: Forrest, Binkley & Xxxxx, X.X.
Its General Partner
By: Forrest, Binkley & Xxxxx Venture Co.
Its General Partner
By: /s/ Xxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxx
Title: Partner
STATE TREASURER OF THE STATE OF
MICHIGAN; CUSTODIAN OF THE
MICHIGAN PUBLIC SCHOOL EMPLOYEES'
RETIREMENT SYSTEM, STATE EMPLOYEES'
RETIREMENT SYSTEM, MICHIGAN STATE
POLICE RETIREMENT SYSTEM AND
MICHIGAN JUDGES RETIREMENT SYSTEM
By: /s/ Xxxxx Xxxx
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Print Name: Xxxxx Xxxx
Title: Acting Administrator, Alternative
Investment
