EX-10.1






Exhibit 10.1




EXECUTION COPY




COMMON STOCK PURCHASE AGREEMENT




COMMON STOCK PURCHASE AGREEMENT (the “Agreement”), dated as of October 27, 2008 by and between
AASTROM BIOSCIENCES, INC., a Michigan corporation (the “Company”), and FUSION CAPITAL FUND II, LLC,
an Illinois limited liability company (the “Buyer”). Capitalized terms used herein and not
otherwise defined herein are defined in Section 10 hereof.



WHEREAS:




Subject to the terms and conditions set forth in this Agreement, the Company wishes to sell to
the Buyer, and the Buyer wishes to buy from the Company, up to Fifteen Million Dollars
($15,000,000) of the Company’s common stock, no par value per share (the “Common Stock”). The
shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”



NOW THEREFORE, the Company and the Buyer hereby agree as follows:



1. PURCHASE OF COMMON STOCK.



Subject to the terms and conditions set forth in this Agreement, the Company has the right to
sell to the Buyer, and the Buyer has the obligation to purchase from the Company, Purchase Shares
as follows:



(a) Commencement of Purchases of Common Stock. The purchase and sale of Purchase
Shares hereunder shall occur from time to time upon written notices by the Company to the Buyer on
the terms and conditions as set forth herein following the satisfaction of the conditions (the
“Commencement”) as set forth in Sections 6 and 7 below (the date of satisfaction of such
conditions, the “Commencement Date”).



(b) The Company’s Right to Require Purchases. Any time on or after the Commencement
Date, the Company shall have the right but not the obligation to direct the Buyer by its delivery
to the Buyer of Base Purchase Notices from time to time to buy Purchase Shares (each such purchase
a “Base Purchase”) in any amount up to Sixty Thousand Dollars ($60,000) per Base Purchase Notice
(the “Base Purchase Amount”) at the Purchase Price on the Purchase Date. The Company may deliver
multiple Base Purchase Notices to the Buyer so long as at least one (1) Business Day has passed
since the most recent Base Purchase was completed. Notwithstanding the forgoing, any time on or
after the Commencement Date, the Company shall also have the right but not the obligation by its
delivery to the Buyer of Block Purchase Notices from time to time to direct the Buyer to buy
Purchase Shares (each such purchase a “Block Purchase”) in any amount up to Two Million Dollars
($2,000,000) per Block Purchase Notice at the Block Purchase Price on the Purchase Date as provided
herein. For a Block Purchase Notice to be valid the following conditions must be met: (1) the
Block Purchase Amount shall not exceed One Hundred Thousand Dollars ($100,000) per Block Purchase
Notice, (2) the Company must deliver the Purchase Shares before 11:00 a.m. eastern time on the
Purchase Date and (3) the Sale Price of the Common Stock must not be below $0.25 (subject to
equitable adjustment for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction) during the Purchase Date, the date of the delivery of the Block Purchase
Notice and during the Business Day prior to the delivery of the Block Purchase Notice. The Block
Purchase Amount may be increased to up to Two Hundred Fifty Thousand Dollars ($250,000) per Block
Purchase Notice if the Sale Price of the Common Stock is not below $0.40 (subject to equitable
adjustment for any reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction) during the Purchase Date, the date of the delivery of the Block Purchase
Notice and during the Business Day prior to the delivery of the Block Purchase Notice. The Block
Purchase Amount may be increased to up to Five Hundred Thousand Dollars ($500,000) per Block
Purchase Notice if the Sale Price of the Common Stock is not below $0.80 (subject to equitable
adjustment for any reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction) during the Purchase Date, the date of the delivery of the Block Purchase
Notice and during the Business Day prior to the delivery of the Block Purchase Notice. The Block
Purchase Amount may be increased to up to One Million Dollars ($1,000,000) per Block Purchase
Notice if the Sale Price of the Common Stock is not below $1.60 (subject to equitable adjustment
for any reorganization, recapitalization, non-cash dividend, stock split or other similar
transaction) during the Purchase Date, the date of the delivery of the Block Purchase Notice and
during the Business Day prior to the delivery of the Block Purchase Notice. The Block Purchase
Amount may be increased to up to Two Million Dollars ($2,000,000) per Block Purchase Notice if the
Sale Price of the Common Stock is not below $2.50 (subject to equitable adjustment for any
reorganization, recapitalization, non-cash dividend, stock split or other similar transaction)
during the Purchase Date, the date of the delivery of the Block Purchase Notice and during the
Business Day prior to the delivery of the Block Purchase Notice. As used herein, the term “Block
Purchase Price” shall mean the lesser of (i) the lowest Sale Price of the Common Stock on the
Purchase Date or (ii) the lowest Purchase Price during the previous ten (10) Business Days prior to
the date that the valid Block Purchase Notice was received by the Buyer. However, if at any time
during the Purchase Date, the date of the delivery of the Block Purchase Notice or during the
Business Day prior to the delivery of the Block Purchase Notice, the Sale Price of the Common Stock
is below the applicable Block Purchase threshold price, such Block Purchase shall be void and the
Buyer’s obligations to buy Purchase Shares in respect of that Block Purchase Notice shall be
terminated. Thereafter, the Company shall again have the right to submit a Block Purchase Notice
as set forth herein by delivery of a new Block Purchase Notice only if the Sale Price of the Common
Stock is above the applicable Block Purchase threshold price during the date of the delivery of the
Block Purchase Notice and during the Business Day prior to the delivery of the Block Purchase
Notice. The Company may deliver multiple Block Purchase Notices to the Buyer so long as at least
two (2) Business Days have passed since the most recent Block Purchase was completed.



(c) Payment for Purchase Shares. The Buyer shall pay to the Company an amount equal
to the Purchase Amount with respect to such Purchase Shares as full payment for such Purchase
Shares via wire transfer of immediately available funds on the same Business Day that the Buyer
receives such Purchase Shares if they are received by the Buyer before 11:00 a.m. eastern time or
if received by the Buyer after 11:00 a.m. eastern time, the next Business Day. The Company shall
not issue any fraction of a share of Common Stock upon any purchase. If the issuance would result
in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of
a share of Common Stock up or down to the nearest whole share. All payments made under this
Agreement shall be made in lawful money of the United States of America or wire transfer of
immediately available funds to such account as the Company may from time to time designate by
written notice in accordance with the provisions of this Agreement. Whenever any amount expressed
to be due by the terms of this Agreement is due on any day that is not a Business Day, the same
shall instead be due on the next succeeding day that is a Business Day.



(d) Purchase Price Floor. The Company and the Buyer shall not effect any sales under
this Agreement on any Purchase Date where the Purchase Price for any purchases of Purchase Shares
would be less than the Floor Price. “Floor Price” means $0.10, which shall be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar
transaction.



(e) Records of Purchases. The Buyer and the Company shall each maintain records
showing the remaining Available Amount at any give time and the dates and Purchase Amounts for each
purchase or shall use such other method, reasonably satisfactory to the Buyer and the Company.



(f) Taxes. The Company shall pay any and all transfer, stamp or similar taxes that
may be payable with respect to the issuance and delivery of any shares of Common Stock to the Buyer
made under this Agreement.



(g) Compliance with Principal Market Rules. Notwithstanding any other provisions in
this Agreement, the Company shall not effect any sale under this Agreement and the Buyer shall not
have the right or the obligation to purchase shares of Common Stock under this Agreement to the
extent that after giving effect to such purchase the “Exchange Cap” shall be deemed to be reached.
The “Exchange Cap” shall be deemed to have been reached if, at any time prior to the shareholders
of the Company approving the transaction contemplated by this Agreement, upon a purchase under this
Agreement, the Purchase Shares issuable pursuant to such purchase would, together with all shares
previously issued under this Agreement, exceed 26,565,299 shares of Common Stock (19.99% of the
132,826,495 outstanding shares of Common Stock as of the date of this Agreement). The Company may,
but shall be under no obligation to, request its shareholders to approve the transaction
contemplated by this Agreement. The Company shall not be required to issue any Purchase Shares
under this Agreement if such issuance would breach the Company’s obligations under the rules or
regulations of the Principal Market.



2. BUYER’S REPRESENTATIONS AND WARRANTIES.



The Buyer represents and warrants to the Company that as of the date hereof and as of the
Commencement Date:



(a) Investment Purpose. The Buyer is entering into this Agreement and acquiring the
Commitment Shares, (as defined in Section 4(e) hereof) (this Agreement, the Purchase Shares and the
Commitment Shares are collectively referred to herein as the “Securities”), for its own account for
investment only and not with a view towards, or for resale in connection with, the public sale or
distribution thereof; provided however, by making the representations herein, the Buyer does not
agree to hold any of the Securities for any minimum or other specific term other than as set forth
in Section 4(e) with respect to the Commitment Shares.



(b) Accredited Investor Status. The Buyer is an “accredited investor” as that term is
defined in Rule 501(a)(3) of Regulation D.



(c) Reliance on Exemptions. The Buyer understands that the Securities are being
offered and sold to it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and the Buyer’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine
the availability of such exemptions and the eligibility of the Buyer to acquire the Securities.



(d) Information. The Buyer has been furnished with all materials relating to the
business, finances and operations of the Company and materials relating to the offer and sale of
the Securities that have been reasonably requested by the Buyer, including, without limitation, the
SEC Documents (as defined in Section 3(f) hereof). The Buyer understands that its investment in
the Securities involves a high degree of risk. The Buyer (i) is able to bear the economic risk of
an investment in the Securities including a total loss, (ii) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of the
proposed investment in the Securities and (iii) has had an opportunity to ask questions of and
receive answers from the officers of the Company concerning the financial condition and business of
the Company and others matters related to an investment in the Securities. Neither such inquiries
nor any other due diligence investigations conducted by the Buyer or its representatives shall
modify, amend or affect the Buyer’s right to rely on the Company’s representations and warranties
contained in Section 3 below. The Buyer has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with respect to its acquisition of the
Securities.



(e) No Governmental Review. The Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Securities.



(f) Transfer or Sale. The Buyer understands that except as provided in the
Registration Rights Agreement (as defined in Section 4(a) hereof): (i) the Securities have not been
and are not being registered under the 1933 Act or any state securities laws, and may not be
offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder or
(B) an exemption exists permitting such Securities to be sold, assigned or transferred without such
registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the
Securities under circumstances in which the seller (or the person through whom the sale is made)
may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance
with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder;
and (iii) neither the Company nor any other person is under any obligation to register the
Securities under the 1933 Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder.



(g) Validity; Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Buyer and is a valid and binding agreement of the Buyer
enforceable against the Buyer in accordance with its terms, subject as to enforceability to general
principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies.



(h) Residency. The Buyer is a resident of the State of Illinois.



(i) No Prior Short Selling. The Buyer represents and warrants to the Company that at
no time prior to the date of this Agreement has any of the Buyer, its agents, representatives or
affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any (i) “short
sale” (as such term is defined in Section 242.200 of Regulation SHO of the Securities Exchange Act
of 1934, as amended (the “1934 Act”)) of the Common Stock or (ii) hedging transaction, which
establishes a net short position with respect to the Common Stock.



3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.



The Company represents and warrants to the Buyer that as of the date hereof and as of the
Commencement Date:



(a) Organization and Qualification. The Company and its “Subsidiaries” (which for
purposes of this Agreement means any entity in which the Company, directly or indirectly, owns 50%
or more of the voting stock or capital stock or other similar equity interests) are corporations
duly organized and validly existing in good standing under the laws of the jurisdiction in which
they are incorporated, and have the requisite corporate power and authority to own their properties
and to carry on their business as now being conducted. Each of the Company and its Subsidiaries is
duly qualified as a foreign corporation to do business and is in good standing in every
jurisdiction in which its ownership of property or the nature of the business conducted by it makes
such qualification necessary, except to the extent that the failure to be so qualified or be in
good standing could not reasonably be expected to have a Material Adverse Effect. As used in this
Agreement, “Material Adverse Effect” means any material adverse effect on any of: (i) the business,
properties, assets, operations, results of operations or financial condition of the Company and its
Subsidiaries, if any, taken as a whole, or (ii) the authority or ability of the Company to perform
its obligations under the Transaction Documents (as defined in Section 3(b) hereof). The Company
has no Subsidiaries except as set forth on Schedule 3(a).



(b) Authorization; Enforcement; Validity. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this Agreement, the
Registration Rights Agreement and each of the other agreements entered into by the parties on the
Commencement Date and attached hereto as exhibits to this Agreement (collectively, the “Transaction
Documents”), and to issue the Securities in accordance with the terms hereof and thereof, (ii) the
execution and delivery of the Transaction Documents by the Company and the consummation by it of
the transactions contemplated hereby and thereby, including, without limitation, the issuance of
the Commitment Shares and the reservation for issuance and the issuance of the Purchase Shares
issuable under this Agreement, have been duly authorized by the Company’s Board of Directors and no
further consent or authorization is required by the Company, its Board of Directors or its
shareholders, (iii) this Agreement has been, and each other Transaction Document shall be on the
Commencement Date, duly executed and delivered by the Company and (iv) this Agreement constitutes,
and each other Transaction Document upon its execution on behalf of the Company, shall constitute,
the valid and binding obligations of the Company enforceable against the Company in accordance with
their terms, except as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of creditors’ rights and remedies. The Board of
Directors of the Company has approved the resolutions (the “Signing Resolutions”) substantially in
the form as set forth as Exhibit C-1 attached hereto to authorize this Agreement and the
transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect and
have not been modified or supplemented in any respect other than by the resolutions set forth in
Exhibit C-2 attached hereto regarding the registration statement referred to in Section 4
hereof. The Company has delivered to the Buyer a true and correct copy of a unanimous written
consent adopting the Signing Resolutions executed by all of the members of the Board of Directors
of the Company. No other approvals or consents of the Company’s Board of Directors and/or
shareholders is necessary under applicable laws and the Company’s Certificate of Incorporation
and/or Bylaws to authorize the execution and delivery of this Agreement or any of the transactions
contemplated hereby, including, but not limited to, the issuance of the Commitment Shares and the
issuance of the Purchase Shares.



(c) Capitalization. As of the date hereof, the authorized capital stock of the
Company consists of (i) 250,000,000 shares of Common Stock, of which as of the date hereof,
132,826,495 shares are issued and outstanding, none are held as treasury shares, 15,923,027 shares
are reserved for issuance pursuant to the Company’s stock option plans of which only approximately
6,974,781 shares remain available for future grants and 19,420,014 shares are issuable and reserved
for issuance pursuant to securities (other than stock options issued pursuant to the Company’s
stock option plans) exercisable or exchangeable for, or convertible into, shares of Common Stock
and (ii) 5,000,000 shares of Preferred Stock, no par value with no per share liquidation
preference, of which as of the date hereof none are issued and outstanding. All of such
outstanding shares have been, or upon issuance will be, validly issued and are fully paid and
nonassessable. Except as disclosed in Schedule 3(c), (i) no shares of the Company’s capital stock
are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered
or permitted by the Company, (ii) there are no outstanding debt securities, (iii) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, any shares of capital stock of
the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements
by which the Company or any of its Subsidiaries is or may become bound to issue additional shares
of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv) there
are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated
to register the sale of any of their securities under the 1933 Act (except the Registration Rights
Agreement), (v) there are no outstanding securities or instruments of the Company or any of its
Subsidiaries which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or
may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no
securities or instruments containing anti-dilution or similar provisions that will be triggered by
the issuance of the Securities as described in this Agreement and (vii) the Company does not have
any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or
agreement. The Company has furnished to the Buyer true and correct copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of
Incorporation”), and the Company’s By-laws, as amended and as in effect on the date hereof (the
“By-laws”), and summaries of the terms of all securities convertible into or exercisable for Common
Stock, if any, and copies of any documents containing the material rights of the holders thereof in
respect thereto.



(d) Issuance of Securities. The Commitment Shares have been duly authorized and, upon
issuance in accordance with the terms hereof, the Commitment Shares shall be (i) validly issued,
fully paid and non-assessable and (ii) free from all taxes, liens and charges with respect to the
issue thereof. 22,692,665 shares of Common Stock have been duly authorized and reserved for
issuance upon purchase under this Agreement. 1,936,317 shares of Common Stock (subject to
equitable adjustment for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction) have been duly authorized and reserved for issuance as Additional
Commitment Shares in accordance with Section 4(e) this Agreement. Upon issuance and payment
therefor in accordance with the terms and conditions of this Agreement, the Purchase Shares shall
be validly issued, fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of
Common Stock.



(e) No Conflicts. Except as disclosed in Schedule 3(e), 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 (including, without limitation, the reservation for
issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Certificate
of Incorporation, any Certificate of Designations, Preferences and Rights of any outstanding series
of preferred stock of the Company or the By-laws or (ii) conflict with, or constitute a default (or
an event which 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 of, any agreement,
indenture or instrument to which the Company or any of its Subsidiaries is a party, or result in a
violation of any law, rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations and the rules and regulations of the Principal Market applicable to
the Company or any of its Subsidiaries) or by which any property or asset of the Company or any of
its Subsidiaries is bound or affected, except in the case of conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations under clause (ii), which could not
reasonably be expected to result in a Material Adverse Effect. Except as disclosed in Schedule
3(e), neither the Company nor its Subsidiaries is in violation of any term of or in default under
its Certificate of Incorporation, any Certificate of Designation, Preferences and Rights of any
outstanding series of preferred stock of the Company or By-laws or their organizational charter or
by-laws, respectively. Except as disclosed in Schedule 3(e), neither the Company nor any of its
Subsidiaries is in violation of any term of or is in default under any material contract,
agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute,
rule or regulation applicable to the Company or its Subsidiaries, except for possible conflicts,
defaults, terminations or amendments which could not reasonably be expected to have a Material
Adverse Effect. The business of the Company and its Subsidiaries is not being conducted, and shall
not be conducted, in violation of any law, ordinance, regulation of any governmental entity, except
for possible violations, the sanctions for which either individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect. Except as specifically contemplated by
this Agreement and as required under the 1933 Act or applicable state securities laws, the Company
is not required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency or any regulatory or self-regulatory agency in
order for it to execute, deliver or perform any of its obligations under or contemplated by the
Transaction Documents in accordance with the terms hereof or thereof. Except as disclosed in
Schedule 3(e), all consents, authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence shall be obtained or effected on or prior to
the Commencement Date. Except as listed in Schedule 3(e), since September 30, 2007 the Company has
not received nor delivered any notices or correspondence from or to the Principal Market. The
Principal Market has not commenced any delisting proceedings against the Company.



(f) SEC Documents; Financial Statements. Except as disclosed in Schedule 3(f), since
June 30, 2007, the Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting requirements of the
1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by reference therein being
hereinafter referred to as the “SEC Documents”). As of their respective dates (except as they have
been correctly amended), the SEC Documents complied in all material respects with the requirements
of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC (except as
they may have been properly amended), 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 light of the circumstances under which they were made, not misleading. As of their
respective dates (except as they have been properly amended), the financial statements of the
Company included in the SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with respect thereto.
Such financial statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial position of the Company as of
the dates thereof and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as
listed in Schedule 3(f), the Company has received no notices or correspondence from the SEC since
September 30, 2007. The SEC has not commenced any enforcement proceedings against the Company or
any of its subsidiaries.



(g) Absence of Certain Changes. Except as disclosed in Schedule 3(g), since June 30,
2008, there has been no material adverse change in the business, properties, operations, financial
condition or results of operations of the Company or its Subsidiaries. The Company has not taken
any steps, and does not currently expect to take any steps, to seek protection pursuant to any
Bankruptcy Law nor does the Company or any of its Subsidiaries have any knowledge or reason to
believe that its creditors intend to initiate involuntary bankruptcy or insolvency proceedings.
The Company is financially solvent and is generally able to pay its debts as they become due.



(h) Absence of Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency, self-regulatory organization
or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against
or affecting the Company, the Common Stock or any of the Company’s Subsidiaries or any of the
Company’s or the Company’s Subsidiaries’ officers or directors in their capacities as such, which
could reasonably be expected to have a Material Adverse Effect. A description of each action,
suit, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body which, as of the date of this Agreement, is pending or
threatened in writing against or affecting the Company, the Common Stock or any of the Company’s
Subsidiaries or any of the Company’s or the Company’s Subsidiaries’ officers or directors in their
capacities as such, is set forth in Schedule 3(h).



(i) Acknowledgment Regarding Buyer’s Status. The Company acknowledges and agrees that
the Buyer is acting solely in the capacity of arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby and thereby. The Company further
acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to the Transaction Documents and the transactions contemplated
hereby and thereby and any advice given by the Buyer or any of its representatives or agents in
connection with the Transaction Documents and the transactions contemplated hereby and thereby is
merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the
Buyer that the Company’s decision to enter into the Transaction Documents has been based solely on
the independent evaluation by the Company and its representatives and advisors.



(j) No General Solicitation. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the 1933 Act) in connection with the offer or
sale of the Securities.



(k) Intellectual Property Rights. The Company and its Subsidiaries own or possess
adequate rights or licenses to use all material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their
respective businesses as now conducted. Except as set forth on Schedule 3(k), none of the
Company’s material trademarks, trade names, service marks, service mark registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals, government
authorizations, trade secrets or other intellectual property rights have expired or terminated, or,
by the terms and conditions thereof, could expire or terminate within two years from the date of
this Agreement. The Company and its Subsidiaries do not have any knowledge of any infringement by
the Company or its Subsidiaries of any material trademark, trade name rights, patents, patent
rights, copyrights, inventions, licenses, service names, service marks, service mark registrations,
trade secret or other similar rights of others, or of any such development of similar or identical
trade secrets or technical information by others and, except as set forth on Schedule 3(k), there
is no claim, action or proceeding being made or brought against, or to the Company’s knowledge,
being threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents,
patent rights, invention, copyright, license, service names, service marks, service mark
registrations, trade secret or other infringement, which could reasonably be expected to have a
Material Adverse Effect.



(l) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such permit, license or
approval, except where, in each of the three foregoing clauses, the failure to so comply could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



(m) Title. The Company and its Subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all personal property owned by them
which is material to the business of the Company and its Subsidiaries, in each case free and clear
of all liens, encumbrances and defects except such as are described in Schedule 3(m) or such as do
not materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and any of its Subsidiaries. Any real property
and facilities held under lease by the Company and any of its Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and buildings by the Company
and its Subsidiaries.



(n) Insurance. The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as management
of the Company believes to be prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for and neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole.



(o) Regulatory Permits. The Company and its Subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit.



(p) Tax Status. The Company and each of its Subsidiaries has made or filed all
federal and state income and all other material tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the extent that the Company and each of
its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know
of no basis for any such claim.



(q) Transactions With Affiliates. Except as set forth on Schedule 3(q) and other than
the grant or exercise of stock options disclosed on Schedule 3(c), none of the officers, directors,
or employees of the Company is presently a party to any transaction with the Company or any of its
Subsidiaries (other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of the Company, any corporation,
partnership, trust or other entity in which any officer, director, or any such employee has an
interest or is an officer, director, trustee or partner.



(r) Application of Takeover Protections. The Company and its board of directors have
taken or will take prior to the Commencement Date all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or the laws of the state of its incorporation which is or could become
applicable to the Buyer as a result of the transactions contemplated by this Agreement, including,
without limitation, the Company’s issuance of the Securities and the Buyer’s ownership of the
Securities.



(s) Foreign Corrupt Practices. Neither the Company, nor any of its Subsidiaries, nor
any director, officer, agent, employee or other person acting on behalf of the Company or any of
its Subsidiaries has, in the course of its actions for, or on behalf of, the Company, used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.



4. COVENANTS.



(a) Filing of Form 8-K and Registration Statement. The Company agrees that it shall,
within the time required under the 1934 Act file a Current Report on Form 8-K disclosing this
Agreement and the transaction contemplated hereby. The Company shall also file within ten (10)
Business Days from the date hereof a new registration statement covering only the sale of the
Commitment Shares and 22,692,665 Purchase Shares in accordance with the terms of the Registration
Rights Agreement between the Company and the Buyer, dated as of the date hereof (“Registration
Rights Agreement”).



(b) Blue Sky. The Company shall take such action, if any, as is reasonably necessary
in order to obtain an exemption for or to qualify (i) the initial sale of the Commitment Shares and
any Purchase Shares to the Buyer under this Agreement and (ii) any subsequent resale of the
Commitment Shares and any Purchase Shares by the Buyer, in each case, under applicable securities
or “Blue Sky” laws of the states of the United States in such states as is reasonably requested by
the Buyer from time to time, and shall provide evidence of any such action so taken to the Buyer.



(c) Listing. The Company shall promptly secure the listing of all of the Purchase
Shares and Commitment Shares upon each national securities exchange and automated quotation system,
if any, upon which shares of Common Stock are then listed (subject to official notice of issuance)
and shall maintain, so long as any other shares of Common Stock shall be so listed, such listing of
all such securities from time to time issuable under the terms of the Transaction Documents. The
Company shall maintain the Common Stock’s authorization for quotation on the Principal Market.
Neither the Company nor any of its Subsidiaries shall take any action that would be reasonably
expected to result in the delisting or suspension of the Common Stock on the Principal Market. The
Company shall promptly, and in no event later than the following Business Day, provide to the Buyer
copies of any notices it receives from the Principal Market regarding the continued eligibility of
the Common Stock for listing on such automated quotation system or securities exchange. The
Company shall pay all fees and expenses in connection with satisfying its obligations under this
Section.



(d) Limitation on Short Sales and Hedging Transactions. The Buyer agrees that
beginning on the date of this Agreement and ending on the date of termination of this Agreement as
provided in Section 11(k), the Buyer and its agents, representatives and affiliates shall not in
any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such
term is defined in Section 242.200 of Regulation SHO of the 1934 Act) of the Common Stock or (ii)
hedging transaction, which establishes a net short position with respect to the Common Stock.



(e) Issuance of Commitment Shares; Limitation on Sales of Commitment Shares.
Immediately upon the execution of this Agreement, the Company shall issue to the Buyer as
consideration for the Buyer entering into this Agreement 1,936,317 shares of Common Stock (the
“Initial Commitment Shares”). In connection with each purchase of Purchase Shares hereunder, the
Company agrees to issue to the Buyer a number of shares of Common Stock (the “Additional Commitment
Shares” and together with the Initial Commitment Shares, the “Commitment Shares”) equal to the
product of (x) 1,936,317 and (y) the Purchase Amount Fraction. The “Purchase Amount Fraction”
shall mean a fraction, the numerator of which is the Purchase Amount purchased by the Buyer with
respect to such purchase of Purchase Shares and the denominator of which is Fifteen Million Dollars
($15,000,000). The Additional Commitment Shares shall be equitably adjusted for any
reorganization, recapitalization, non-cash dividend, stock split or other similar transaction. The
Initial Commitment Shares shall be issued in certificated form and (subject to Section 5 hereof)
shall bear the following restrictive legend:



THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A
CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS.



The Buyer agrees that the Buyer shall not transfer or sell the Commitment Shares until the
earlier of 500 Business Days (25 Monthly Periods) from the date hereof or the date on which this
Agreement has been terminated, provided, however, that such restrictions shall not apply: (i) in
connection with any transfers to or among affiliates (as defined in the 1934 Act), (ii) in the
event that the Commencement does not occur on or before January 15, 2009, due to the failure of the
Company to satisfy the conditions set forth in Section 7 or (iii) if an Event of Default has
occurred, or any event which, after notice and/or lapse of time, would become an Event of Default,
including any failure by the Company to timely issue Purchase Shares under this Agreement.
Notwithstanding the forgoing, the Buyer may transfer Commitment Shares to a third party in order to
settle a sale made by the Buyer where the Buyer reasonably expects the Company to deliver Purchase
Shares to the Buyer under this Agreement so long as the Buyer maintains ownership of the same
overall number of shares of Common Stock by “replacing” the Commitment Shares so transferred with
Purchase Shares when the Purchase Shares are actually issued by the Company to the Buyer.



(g) Due Diligence. The Buyer shall have the right, from time to time as the Buyer may
reasonably deem appropriate, to perform reasonable due diligence on the Company during normal
business hours. The Company and its officers and employees shall provide information and
reasonably cooperate with the Buyer in connection with any reasonable request by the Buyer related
to the Buyer’s due diligence of the Company, including, but not limited to, any such request made
by the Buyer in connection with (i) the filing of the registration statement described in Section
4(a) hereof and (ii) the Commencement. Each party hereto agrees not to disclose any Confidential
Information of the other party to any third party and shall not use the Confidential Information
for any purpose other than in connection with, or in furtherance of, the transactions contemplated
hereby. Each party hereto acknowledges that the Confidential Information shall remain the property
of the disclosing party and agrees that it shall take all reasonable measures to protect the
secrecy of any Confidential Information disclosed by the other party.



5. TRANSFER AGENT INSTRUCTIONS.



Immediately upon the execution of this Agreement, the Company shall deliver to the Transfer
Agent a letter in the form as set forth as Exhibit E attached hereto with respect to the
issuance of the Initial Commitment Shares. On the Commencement Date, the Company shall cause any
restrictive legend on the Initial Commitment Shares to be removed and all of the Purchase Shares
and Additional Commitment Shares, to be issued under this Agreement shall be issued without any
restrictive legend unless the Buyer expressly consents otherwise. The Company shall issue
irrevocable instructions to the Transfer Agent, and any subsequent transfer agent, to issue
Purchase Shares in the name of the Buyer for the Purchase Shares (the “Irrevocable Transfer Agent
Instructions”). The Company warrants to the Buyer that no instruction other than the Irrevocable
Transfer Agent Instructions referred to in this Section 5, will be given by the Company to the
Transfer Agent with respect to the Purchase Shares and that the Commitment Shares and the Purchase
Shares shall otherwise be freely transferable on the books and records of the Company as and to the
extent provided in this Agreement and the Registration Rights Agreement subject to the provisions
of Section 4(e) in the case of the Commitment Shares.




	 	6.	 	CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE






SALES OF SHARES OF COMMON STOCK UNDER THIS AGREEMENT.



The right of the Company hereunder to commence sales of the Purchase Shares is subject to the
satisfaction of each of the following conditions on or before the Commencement Date (the date that
the Company may begin sales):



(a) The Buyer shall have executed each of the Transaction Documents and delivered the same to
the Company;



(b) A registration statement covering the sale of all of the Commitment Shares and Purchase
Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with
respect to the registration statement shall be pending or threatened by the SEC; and



(c) The representations and warranties of the Buyer shall be true and correct in all material
respects as of the date when made and as of the Commencement Date as though made at that time
(except for representations and warranties that speak as of a specific date), and the Buyer shall
have performed, satisfied and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at
or prior to the Commencement Date.




	 	7.	 	CONDITIONS TO THE BUYER’S OBLIGATION TO MAKE






PURCHASES OF SHARES OF COMMON STOCK.



The obligation of the Buyer to buy Purchase Shares under this Agreement is subject to the
satisfaction of each of the following conditions on or before the Commencement Date (the date that
the Company may begin sales) and once such conditions have been initially satisfied, there shall
not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:



(a) The Company shall have executed each of the Transaction Documents and delivered the same
to the Buyer;



(b) The Company shall have issued to the Buyer the Initial Commitment Shares and shall have
removed the restrictive transfer legend from the certificate representing the Initial Commitment
Shares;



(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the
Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal
Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the
Principal Market;



(d) The Buyer shall have received the opinions of the Company’s legal counsel dated as of the
Commencement Date substantially in the form of Exhibit A attached hereto;



(e) The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality in Section 3 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the date when made and as of the
Commencement Date as though made at that time (except for representations and warranties that speak
as of a specific date) and the Company shall have performed, satisfied and complied with the
covenants, agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Commencement Date. The Buyer shall
have received a certificate, executed by the CEO, President or CFO of the Company, dated as of the
Commencement Date, to the foregoing effect in the form attached hereto as Exhibit B;



(f) The Board of Directors of the Company shall have adopted resolutions in the form attached
hereto as Exhibit C which shall be in full force and effect without any amendment or
supplement thereto as of the Commencement Date;



(g) As of the Commencement Date, the Company shall have reserved out of its authorized and
unissued Common Stock, (A) solely for the purpose of effecting purchases of Purchase Shares
hereunder, 22,692,665 shares of Common Stock and (B) as Additional Commitment Shares in accordance
with Section 4(e) hereof, 1,936,317 shares of Common Stock;



(h) The Irrevocable Transfer Agent Instructions, in form acceptable to the Buyer shall have
been delivered to and acknowledged in writing by the Company and the Company’s Transfer Agent;



(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation
and good standing of the Company in the State of Michigan issued by the Secretary of State of the
State of Michigan as of a date within ten (10) Business Days of the Commencement Date;



(j) The Company shall have delivered to the Buyer a certified copy of the Certificate of
Incorporation as certified by the Secretary of State of the State of Michigan within ten (10)
Business Days of the Commencement Date;



(k) The Company shall have delivered to the Buyer a secretary’s certificate executed by the
Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as
Exhibit D;



(l) A registration statement covering the sale of all of the Commitment Shares and Purchase
Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with
respect to the registration statement shall be pending or threatened by the SEC. The Company shall
have prepared and delivered to the Buyer a final and complete form of prospectus, dated and current
as of the Commencement Date, to be used by the Buyer in connection with any sales of any Commitment
Shares or any Purchase Shares, and to be filed by the Company one Business Day after the
Commencement Date. The Company shall have made all filings under all applicable federal and state
securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase
Shares pursuant to this Agreement in compliance with such laws;



(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time,
would become an Event of Default has occurred;



(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any,
and such actions as reasonably requested by the Buyer, in order to render inapplicable any control
share acquisition, business combination, shareholder rights plan or poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or the laws of the state of its incorporation which is or could become
applicable to the Buyer as a result of the transactions contemplated by this Agreement, including,
without limitation, the Company’s issuance of the Securities and the Buyer’s ownership of the
Securities; and



(o) The Company shall have provided the Buyer with the information requested by the Buyer in
connection with its due diligence requests made prior to, or in connection with, the Commencement,
in accordance with the terms of Section 4(g) hereof.




	 	8.	 	INDEMNIFICATION.





In consideration of the Buyer’s execution and delivery of the Transaction Documents and
acquiring the Securities hereunder 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 Buyer
and all of its affiliates, shareholders, officers, directors, employees and direct or indirect
investors and any of the foregoing person’s 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 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 thereby, or (c) any cause of action, suit or claim brought or made against such Indemnitee and
arising out of or resulting from the execution, delivery, performance or enforcement of the
Transaction Documents or any other certificate, instrument or document contemplated hereby or
thereby, other than with respect to Indemnified Liabilities which directly and primarily result
from the gross negligence or willful misconduct of the Indemnitee. 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.



9. EVENTS OF DEFAULT.



An “Event of Default” shall be deemed to have occurred at any time as any of the following
events occurs:



(a) while any registration statement is required to be maintained effective pursuant to the
terms of the Registration Rights Agreement, the effectiveness of such registration statement lapses
for any reason (including, without limitation, the issuance of a stop order) or is unavailable to
the Buyer for sale of all of the Registrable Securities (as defined in the Registration Rights
Agreement) in accordance with the terms of the Registration Rights Agreement, and such lapse or
unavailability continues for a period of ten (10) consecutive Business Days or for more than an
aggregate of thirty (30) Business Days in any 365-day period;



(b) the suspension from trading or failure of the Common Stock to be listed on the Principal
Market for a period of three (3) consecutive Business Days;



(c) the delisting of the Company’s Common Stock from the Principal Market, provided, however,
that the Common Stock is not immediately thereafter trading on the New York Stock Exchange, the
Nasdaq Global Market, the OTC Bulletin Board, or the NYSE Alternext US;



(d) the failure for any reason by the Transfer Agent to issue Purchase Shares to the Buyer
within five (5) Business Days after the applicable Purchase Date which the Buyer is entitled to
receive;



(e) the Company breaches any representation, warranty, covenant or other term or condition
under any Transaction Document if such breach could have a Material Adverse Effect and except, in
the case of a breach of a covenant which is reasonably curable, only if such breach continues for a
period of at least five (5) Business Days;



(f) if any Person commences a proceeding against the Company pursuant to or within the meaning
of any Bankruptcy Law;



(g) if the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a
voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors, (E) becomes insolvent,
or (F) is generally unable to pay its debts as the same become due;



(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
(A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the
Company or for all or substantially all of its property, or (C) orders the liquidation of the
Company or any Subsidiary;



(i) a material adverse change in the business, properties, operations, financial condition or
results of operations of the Company and its Subsidiaries taken as a whole; or



(j) if at any time after the Commencement Date, the “Exchange Cap” is reached. The “Exchange
Cap” shall be deemed to be reached at such time if, upon submission of a Purchase Notice under this
Agreement, the issuance of such shares of Common Stock would exceed that number of shares of Common
Stock which the Company may issue under this Agreement without breaching the Company’s obligations
under the rules or regulations of the Principal Market.



In addition to any other rights and remedies under applicable law and this Agreement, including the
Buyer termination rights under Section 11(k) hereof, so long as an Event of Default has occurred
and is continuing, or if any event which, after notice and/or lapse of time, would become an Event
of Default, has occurred and is continuing, or so long as the Purchase Price is below the Purchase
Price Floor, the Buyer shall not be permitted or obligated to purchase any shares of Common Stock
under this Agreement. If pursuant to or within the meaning of any Bankruptcy Law, the Company
commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is
appointed for the Company or for all or substantially all of its property, or the Company makes a
general assignment for the benefit of its creditors, (any of which would be an Event of Default as
described in Sections 9(f), 9(g) and 9(h) hereof) this Agreement shall automatically terminate
without any liability or payment to the Company without further action or notice by any Person. No
such termination of this Agreement under Section 11(k)(i) shall affect the Company’s or the Buyer’s
obligations under this Agreement with respect to pending purchases and the Company and the Buyer
shall complete their respective obligations with respect to any pending purchases under this
Agreement.



10. CERTAIN DEFINED TERMS.



For purposes of this Agreement, the following terms shall have the following meanings:



(a) “1933 Act” means the Securities Act of 1933, as amended.



(b) “Available Amount” means initially Fifteen Million Dollars ($15,000,000) in the aggregate
which amount shall be reduced by the Purchase Amount each time the Buyer purchases shares of Common
Stock pursuant to Section 1 hereof.



(c) “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.



(d) “Base Purchase Notice” shall mean an irrevocable written notice from the Company to the
Buyer directing the Buyer to buy up to the Base Purchase Amount in Purchase Shares as specified by
the Company therein at the applicable Purchase Price on the Purchase Date.



(e) “Block Purchase Amount” shall mean such Block Purchase Amount as specified by the Company
in a Block Purchase Notice subject to Section 1(b) hereof.



(f) “Block Purchase Notice” shall mean an irrevocable written notice from the Company to the
Buyer directing the Buyer to buy the Block Purchase Amount in Purchase Shares as specified by the
Company therein at the Block Purchase Price as of the Purchase Date subject to Section 1 hereof.



(d) “Business Day” means any day on which the Principal Market is open for trading including
any day on which the Principal Market is open for trading for a period of time less than the
customary time.



(e) “Closing Sale Price” means, for any security as of any date, the last closing trade price
for such security on the Principal Market as reported by the Principal Market, or, if the
Principal Market is not the principal securities exchange or trading market for such security, the
last closing trade price of such security on the principal securities exchange or trading market
where such security is listed or traded as reported by the Principal Market.



(f) “Confidential Information” means any information disclosed by either party to the other
party, either directly or indirectly, in writing, orally or by inspection of tangible objects
(including, without limitation, documents, prototypes, samples, plant and equipment), which is
designated as “Confidential,” “Proprietary” or some similar designation. Information communicated
orally shall be considered Confidential Information if such information is confirmed in writing as
being Confidential Information within ten (10) Business Days after the initial disclosure.
Confidential Information may also include information disclosed to a disclosing party by third
parties. Confidential Information shall not, however, include any information which (i) was
publicly known and made generally available in the public domain prior to the time of disclosure by
the disclosing party; (ii) becomes publicly known and made generally available after disclosure by
the disclosing party to the receiving party through no action or inaction of the receiving party;
(iii) is already in the possession of the receiving party at the time of disclosure by the
disclosing party as shown by the receiving party’s files and records immediately prior to the time
of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such
third party’s obligations of confidentiality; (v) is independently developed by the receiving party
without use of or reference to the disclosing party’s Confidential Information, as shown by
documents and other competent evidence in the receiving party’s possession; or (vi) is required by
law to be disclosed by the receiving party, provided that the receiving party gives the disclosing
party prompt written notice of such requirement prior to such disclosure and assistance in
obtaining an order protecting the information from public disclosure.



(g) “Custodian” means any receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.



(h) “Maturity Date” means the date that is 500 Business Days (25 Monthly Periods) from the
Commencement Date.



(i) “Monthly Period” means each successive 20 Business Day period commencing with the
Commencement Date.



(j) “Person” means an individual or entity including any limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.



(k) “Principal Market” means the Nasdaq Capital Market; provided however, that in the event
the Company’s Common Stock is ever listed or traded on the Nasdaq Global Market, the OTC Bulletin
Board, the New York Stock Exchange or the NYSE Alternext US, than the “Principal Market” shall mean
such other market or exchange on which the Company’s Common Stock is then listed or traded.



(l) “Purchase Amount” means, with respect to any particular purchase made hereunder, the
portion of the Available Amount to be purchased by the Buyer pursuant to Section 1 hereof as set
forth in a valid Base Purchase Notice or a valid Block Purchase Notice which the Company delivers
to the Buyer.



(m) “Purchase Date” means with respect to any particular purchase made hereunder, the Business
Day after receipt by the Buyer of a valid Base Purchase Notice or a valid Block Purchase Notice
that the Buyer is to buy Purchase Shares pursuant to Section 1 hereof.



(n) “Purchase Price” means the lower of the (A) the lowest Sale Price of the Common Stock on
the Purchase Date and (B) the arithmetic average of the three (3) lowest Closing Sale Prices for
the Common Stock during the twelve (12) consecutive Business Days ending on the Business Day
immediately preceding such Purchase Date (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction).



(o) “Sale Price” means, any trade price for the shares of Common Stock on the Principal Market
as reported by the Principal Market.



(q) “SEC” means the United States Securities and Exchange Commission.



(r) “Transfer Agent” means the transfer agent of the Company as set forth in Section 11(f)
hereof or such other person who is then serving as the transfer agent for the Company in respect of
the Common Stock.



11. MISCELLANEOUS.



(a) Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of
Michigan shall govern all issues concerning the relative rights of the Company and its
shareholders. All other questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the other Transaction Documents shall be governed by the
internal laws of the State of Illinois, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Illinois or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of Illinois. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of Chicago, for the adjudication of any dispute hereunder or under the other
Transaction Documents or in connection herewith or therewith, 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 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
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



(b) 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.



(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.



(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other jurisdiction.



(e) Entire Agreement. With the exception of the Mutual Nondisclosure Agreement
between the parties dated as of October 17, 2008, this Agreement supersedes all other prior oral or
written agreements between the Buyer, the Company, their affiliates and persons acting on their
behalf with respect to the matters discussed herein, and this Agreement, the other Transaction
Documents 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 the Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. The Company acknowledges and agrees that is has not
relied on, in any manner whatsoever, any representations or statements, written or oral, other than
as expressly set forth in this Agreement.



(f) Notices. Any notices, consents 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 a nationally recognized
overnight delivery 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.

	24 Frank Lloyd Wright Drive

	P.O. Box 376
Ann Arbor, MI 48106
Telephone:
	 	 	734-930-5555	 
	Facsimile:
	 	 	734-665-0485	 
	Attention:
	 	Chief Executive Officer






	 	 	 	 	 
	With a copy to:
	 	 	 	 
	Allan J. Reich
Seyfarth Shaw LLP
	 	 	 	 
	131 South Dearborn, Suite 2400

	Chicago, Illinois 60603

	Telephone:
	 	 	312-460-5650	 
	Facsimile:
	 	 	312-460-7650	 






	 	 	 	 	 
	If to the Buyer:
	 	 	 	 
	Fusion Capital Fund II, LLC

	222 Merchandise Mart Plaza, Suite 9-112

	Chicago, IL 60654
Telephone:
	 	 	312-644-6644	 
	Facsimile:
	 	 	312-644-6244	 
	Attention:
	 	Steven G. Martin






	 	 	 	 	 
	If to the Transfer Agent:

	Continental Stock Transfer & Trust Company

	17 Battery Place, 8th Floor

	New York, NY 10004
Telephone:
	 	 	(212) 509-4000	 
	Attention:
	 	Richard Viscovich






or at 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 three (3) Business
Days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine containing the time, date, and recipient facsimile
number or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.



(g) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns. The Company shall not assign
this Agreement or any rights or obligations hereunder without the prior written consent of the
Buyer, including by merger or consolidation. The Buyer may not assign its rights or obligations
under this Agreement.



(h) 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.



(i) Publicity. The Buyer shall have the right to approve before issuance any press
release, SEC filing or any other public disclosure made by or on behalf of the Company whatsoever
with respect to, in any manner, the Buyer, its purchases hereunder or any aspect of this Agreement
or the transactions contemplated hereby; provided, however, that the Company shall be entitled,
without the prior approval of the Buyer, to make any press release or other public disclosure
(including any filings with the SEC) with respect to such transactions as is required by applicable
law and regulations so long as the Company and its counsel provide the Buyer in connection with any
such press release or other public disclosure at least one (1) Business Day prior to its release.
The Company agrees and acknowledges that its failure to fully comply with this provision
constitutes a material adverse effect on its ability to perform its obligations under this
Agreement.



(j) 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 the 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.



(k) Termination. This Agreement may be terminated only as follows:




(i) By the Buyer any time an Event of Default exists without any liability or payment
to the Company. However, if pursuant to or within the meaning of any Bankruptcy Law, the
Company commences a voluntary case or any Person commences a proceeding against the Company,
a Custodian is appointed for the Company or for all or substantially all of its property, or
the Company makes a general assignment for the benefit of its creditors, (any of which would
be an Event of Default as described in Sections 9(f), 9(g) and 9(h) hereof) this Agreement
shall automatically terminate without any liability or payment to the Company without
further action or notice by any Person. No such termination of this Agreement under this
Section 11(k)(i) shall affect the Company’s or the Buyer’s obligations under this Agreement
with respect to pending purchases and the Company and the Buyer shall complete their
respective obligations with respect to any pending purchases under this Agreement.




(ii) In the event that the Commencement shall not have occurred, the Company shall have
the option to terminate this Agreement for any reason or for no reason without any liability
whatsoever of any party to any other party under this Agreement.




(iii) In the event that the Commencement shall not have occurred on or before March 1,
2009, due to the failure to satisfy the conditions set forth in Sections 6 and 7 above with
respect to the Commencement, the nonbreaching party shall have the option to terminate this
Agreement at the close of business on such date or thereafter without liability of any party
to any other party.




(iv) At any time after the Commencement Date, the Company shall have the option to
terminate this Agreement for any reason or for no reason by delivering notice (a “Company
Termination Notice”) to the Buyer electing to terminate this Agreement without any liability
whatsoever of any party to any other party under this Agreement. The Company Termination
Notice shall not be effective until one (1) Business Day after it has been received by the
Buyer.




(v) This Agreement shall automatically terminate on the date that the Company sells and
the Buyer purchases the full Available Amount as provided herein, without any action or
notice on the part of any party and without any liability whatsoever of any party to any
other party under this Agreement.




(vi) If by the Maturity Date for any reason or for no reason the full Available Amount
under this Agreement has not been purchased as provided for in Section 1 of this Agreement,
this Agreement shall automatically terminate on the Maturity Date, without any action or
notice on the part of any party and without any liability whatsoever of any party to any
other party under this Agreement.



Except as set forth in Sections 11(k)(i) (in respect of an Event of Default under Sections 9(f),
9(g) and 9(h)) and 11(k)(vi), any termination of this Agreement pursuant to this Section 11(k)
shall be effected by written notice from the Company to the Buyer, or the Buyer to the Company, as
the case may be, setting forth the basis for the termination hereof. The representations and
warranties of the Company and the Buyer contained in Sections 2, 3 and 5 hereof, the
indemnification provisions set forth in Section 8 hereof and the agreements and covenants set forth
in Section 11, shall survive the Commencement and any termination of this Agreement. No
termination of this Agreement shall affect the Company’s or the Buyer’s rights or obligations (i)
under the Registration Rights Agreement which shall survive any such termination or (ii) under this
Agreement with respect to pending purchases and the Company and the Buyer shall complete their
respective obligations with respect to any pending purchases under this Agreement.



(l) No Financial Advisor, Placement Agent, Broker or Finder. The Company represents
and warrants to the Buyer that it has not engaged any financial advisor, placement agent, broker or
finder in connection with the transactions contemplated hereby. The Buyer represents and warrants
to the Company that it has not engaged any financial advisor, placement agent, broker or finder in
connection with the transactions contemplated hereby. The Company shall be responsible for the
payment of any fees or commissions, if any, of any financial advisor, placement agent, broker or
finder relating to or arising out of the transactions contemplated hereby. The Company shall pay,
and hold the Buyer harmless against, any liability, loss or expense (including, without limitation,
attorneys’ fees and out of pocket expenses) arising in connection with any such claim.



(m) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.



(n) Remedies, Other Obligations, Breaches and Injunctive Relief. The Buyer’s remedies
provided in this Agreement shall be cumulative and in addition to all other remedies available to
the Buyer under this Agreement, at law or in equity (including a decree of specific performance
and/or other injunctive relief), no remedy of the Buyer contained herein shall be deemed a waiver
of compliance with the provisions giving rise to such remedy and nothing herein shall limit the
Buyer’s right to pursue actual damages for any failure by the Company to comply with the terms of
this Agreement. The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Buyer and that the remedy at law for any such breach may be
inadequate. The Company therefore agrees that, in the event of any such breach or threatened
breach, the Buyer shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic loss and without any bond or
other security being required.



(0) Enforcement Costs. If: (i) this Agreement is placed by the Buyer in the hands of
an attorney for enforcement or is enforced by the Buyer through any legal proceeding; or (ii) an
attorney is retained to represent the Buyer in any bankruptcy, reorganization, receivership or
other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii)
an attorney is retained to represent the Buyer in any other proceedings whatsoever in connection
with this Agreement, then the Company shall pay to the Buyer, as incurred by the Buyer, all
reasonable costs and expenses including attorneys’ fees incurred in connection therewith, in
addition to all other amounts due hereunder.



(p) Failure or Indulgence Not Waiver. No failure or delay in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further exercise thereof
or of any other right, power or privilege.



* * * * *





1






IN WITNESS WHEREOF, the Buyer and the Company have caused this Common Stock Purchase
Agreement to be duly executed as of the date first written above.




THE COMPANY:




AASTROM BIOSCIENCES, INC.



By: /s/ George W. Dunbar, Jr.

Name: George W. Dunbar, Jr.

Title: Chief Executive Officer





BUYER:




FUSION CAPITAL FUND II, LLC



BY: FUSION CAPITAL PARTNERS, LLC



BY: SGM HOLDINGS CORP.




By: /s/ Steven G. Martin

Name: Steven G. Martin

Title: President




	 	 	 
	 	 	SCHEDULES
	Schedule 3(a)

Schedule 3(c)

Schedule 3(e)

Schedule 3(f)

Schedule 3(g)

Schedule 3(h)

Schedule 3(k)

Schedule 3(m)

Schedule 3(q)

	 	Subsidiaries

Capitalization

Conflicts

1934 Act Filings

Material Changes

Litigation

Intellectual Property

Liens

Certain Transactions






EXHIBITS




	 	 	 
	Exhibit A

Exhibit B

Exhibit C

Exhibit D

Exhibit E

	 	Form of Company Counsel Opinion

Form of Officer’s Certificate

Form of Resolutions of Board of Directors of the Company

Form of Secretary’s Certificate

Form of Letter to Transfer Agent






2




Schedule 3(a) – Subsidiaries




Aastrom Biosciences, Ltd., Ireland


Aastrom Biosciences GmbH, Germany


Aastrom Biosciences SL, Spain



Schedule 3(c) — Capitalization




The Company has warrants to purchase 10,159,896 shares of its Common Stock outstanding.



The Company has stock options to purchase 8,948,246 shares of its Common Stock outstanding and
42,475 shares of restricted stock outstanding.



3




Schedule 3(e) — No Conflicts




The following is a list of notices and correspondences received from or delivered to the
Principal Market since September 30, 2007:




Notice from Nasdaq of bid price requirement violation on December 20, 2007




Filing of Listing of Additional Shares form with Nasdaq by the Company on October 16, 2007
(follow-up copy sent on November 5, 2007)




Notice from Nasdaq regarding additional 180-day extension of time to meet bid price
requirement on June 18, 2008




Notice from Nasdaq regarding suspension of enforcement of bid price violation on October 22,
2008



4




Schedule 3(f) — 1934 Act Filings




The following is a list of notices and correspondences received from the SEC:



Comment letter received February 27, 2008 to the Proxy Statement for the Special Meeting



Comment letter received March 3, 2008 to the Annual Report on Form 10-K for the year ended
June 30, 2007



Letter received April 4, 2008 stating that there were no more comments to the Company’s Annual
Report on Form 10-K for the year ended June 30, 2007



5




Schedule 3(g) — Absence of Certain Changes




None.



6




Schedule 3(h) — Litigation




None.



7




Schedule 3(k) — Intellectual Property Rights




None.



8




Schedule 3(m) — Title




None.



9



Schedule 3(q) — Transactions with Affiliates




None.



10



EXHIBIT A




FORM OF COMPANY COUNSEL OPINION




Capitalized terms used herein but not defined herein, have the meaning set forth in the Common
Stock Purchase Agreement. Based on the foregoing, and subject to the assumptions and
qualifications set forth herein, we are of the opinion that:



1. The Company is a corporation existing and in good standing under the laws of the State of
Michigan. The Company is qualified to do business as a foreign corporation and is in good standing
in the States of Michigan.



2. The Company has the corporate power to execute and deliver, and perform its obligations
under, each Transaction Document to which it is a party. The Company has the corporate power to
conduct its business as, to the best of our knowledge, it is now conducted, and to own and use the
properties owned and used by it.



3. The execution, delivery and performance by the Company of the Transaction Documents to
which it is a party have been duly authorized by all necessary corporate action on the part of the
Company. The execution and delivery of the Transaction Documents by the Company, the performance
of the obligations of the Company thereunder and the consummation by it of the transactions
contemplated therein have been duly authorized and approved by the Company’s Board of Directors and
no further consent, approval or authorization of the Company, its Board of Directors or its
stockholders is required. The Transaction Documents to which the Company is a party have been duly
executed and delivered by the Company and are the valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency, liquidation or
similar laws relating to, or affecting creditor’s rights and remedies.



4. The execution, delivery and performance by the Company of the Transaction Documents, the
consummation by the Company of the transactions contemplated thereby including the offering, sale
and issuance of the Commitment Shares, and the Purchase Shares in accordance with the terms and
conditions of the Common Stock Purchase Agreement, and fulfillment and compliance with terms of the
Transaction Documents, does not and shall not: (i) conflict with, constitute a breach of or default
(or an event which, with the giving of notice or lapse of time or both, constitutes or could
constitute a breach or a default), under (a) the Certificate of Incorporation or the Bylaws of the
Company, (b) any material agreement, note, lease, mortgage, deed or other material instrument to
which to our knowledge the Company is a party or by which the Company or any of its assets are
bound, (ii) result in any violation of any statute, law, rule or regulation applicable to the
Company, or (iii) to our knowledge, violate any order, writ, injunction or decree applicable to the
Company or any of its subsidiaries.



5. The issuance of the Purchase Shares, and Commitment Shares pursuant to the terms and
conditions of the Transaction Documents has been duly authorized and the Commitment Shares are
validly issued, fully paid and non-assessable, to our knowledge, free of all taxes, liens, charges,
restrictions, rights of first refusal and preemptive rights. 22,692,665 shares of Common Stock have
been properly reserved for issuance under the Common Stock Purchase Agreement. When issued and
paid for in accordance with the Common Stock Purchase Agreement, the Purchase Shares shall be
validly issued, fully paid and non-assessable, to our knowledge, free of all taxes, liens, charges,
restrictions, rights of first refusal and preemptive rights. 1,936,317 shares of Common Stock have
been properly reserved for issuance as Additional Commitment Shares under the Common Stock Purchase
Agreement. When issued in accordance with the Common Stock Purchase Agreement, the Additional
Commitment Shares shall be validly issued, fully paid and non-assessable, to our knowledge, free of
all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights. To our
knowledge, the execution and delivery of the Registration Rights Agreement do not, and the
performance by the Company of its obligations thereunder shall not, give rise to any rights of any
other person for the registration under the 1933 Act of any shares of Common Stock or other
securities of the Company which have not been waived.



6. As of the date hereof, the authorized capital stock of the Company consists of 250,000,000
shares of common stock, no par value per share, of which to our knowledge 132,826,495 shares are
issued and outstanding. Except as set forth on Schedule 3(c) of the Common Stock Purchase
Agreement, to our knowledge, there are no outstanding shares of capital stock or other securities
convertible into or exchangeable or exercisable for shares of the capital stock of the Company.



7. Assuming the accuracy of the representations and your compliance with the covenants made by
you in the Transaction Documents, the offering, sale and issuance of the Commitment Shares to you
pursuant to the Transaction Documents is exempt from registration under the 1933 Act and the
securities laws and regulations of the States of Michigan, Illinois.



8. Other than that which has been obtained and completed prior to the date hereof, no
authorization, approval, consent, filing or other order of any federal or state governmental body,
regulatory agency, or stock exchange or market, or any court, or, to our knowledge, any third party
is required to be obtained by the Company to enter into and perform its obligations under the
Transaction Documents or for the Company to issue and sell the Purchase Shares as contemplated by
the Transaction Documents.



9. The Common Stock is registered pursuant to Section 12(b) of the 1934 Act. To our
knowledge, since June 30, 2007, the Company has been in compliance with the reporting requirements
of the 1934 Act applicable to it. To our knowledge, since September 30, 2007, the Company has not
received any written notice from the Principal Market stating that the Company has not been in
compliance with any of the rules and regulations (including the requirements for continued listing)
of the Principal Market.



We further advise you that to our knowledge, except as disclosed on Schedule 3(h) in the
Common Stock Purchase Agreement, there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board or body, any governmental agency, any stock exchange or
market, or self-regulatory organization, which has been threatened in writing or which is currently
pending against the Company, any of its subsidiaries, any officers or directors of the Company or
any of its subsidiaries or any of the properties of the Company or any of its subsidiaries.



In addition, we have participated in the preparation of the Registration Statement (SEC File
#     ) covering the sale of the Purchase Shares, the Commitment Shares including the prospectus
dated      , contained therein and in conferences with officers and other representatives of
the Company (including the Company’s independent auditors) during which the contents of the
Registration Statement and related matters were discussed and reviewed and, although we are not
passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, on the basis of the information that was
developed in the course of the performance of the services referred to above, considered in the
light of our understanding of the applicable law, nothing came to our attention that caused us to
believe that the Registration Statement (other than the financial statements and schedules and the
other financial and statistical data included therein, as to which we express no belief), as of
their dates, contained any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.



11



EXHIBIT B




FORM OF OFFICER’S CERTIFICATE




This Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 7(e) of that
certain Common Stock Purchase Agreement dated as of      , (“Common Stock Purchase Agreement”),
by and between AASTROM BIOSCIENCES, INC., a Michigan corporation (the “Company”), and FUSION
CAPITAL FUND II, LLC (the “Buyer”). Terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Common Stock Purchase Agreement.



The undersigned,      ,      of the Company, hereby certifies as follows:



1. I am the      of the Company and make the statements contained
in this Certificate;



2. The representations and warranties of the Company are true and correct in
all material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 of the Common Stock
Purchase Agreement, in which case, such representations and warranties are true and
correct without further qualification) as of the date when made and as of the
Commencement Date as though made at that time (except for representations and
warranties that speak as of a specific date);



3. The Company has performed, satisfied and complied in all material respects
with covenants, agreements and conditions required by the Transaction Documents to
be performed, satisfied or complied with by the Company at or prior to the
Commencement Date.




4. The Company has not taken any steps, and does not currently expect to take any
steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its
Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is
generally able to pay its debts as they become due.



IN WITNESS WHEREOF, I have hereunder signed my name on this      day of      .



     



Name:



Title:



The undersigned as Secretary of      , a      corporation, hereby certifies that
     is the duly elected, appointed, qualified and acting      of      and that the
signature appearing above is his genuine signature.



     



Secretary





12






EXHIBIT C-1




FORM OF COMPANY RESOLUTIONS

FOR SIGNING PURCHASE AGREEMENT




UNANIMOUS WRITTEN CONSENT OF

AASTROM BIOSCIENCES, INC.




Pursuant to Section      of the      , the undersigned, being all of the directors of
AASTROM BIOSCIENCES, INC., a Michigan corporation (the “Corporation”) do hereby consent to and
adopt the following resolutions as the action of the Board of Directors for and on behalf of the
Corporation and hereby direct that this Consent be filed with the minutes of the proceedings of the
Board of Directors:



WHEREAS, there has been presented to the Board of Directors of the Corporation a draft of the
Common Stock Purchase Agreement (the “Purchase Agreement”) by and between the Corporation and
Fusion Capital Fund II, LLC (“Fusion”), providing for the purchase by Fusion of up to Fifteen
Million Dollars ($15,000,000) of the Corporation’s common stock, no par value (the “Common Stock”);
and



WHEREAS, after careful consideration of the Purchase Agreement, the documents incident thereto
and other factors deemed relevant by the Board of Directors, the Board of Directors has determined
that it is advisable and in the best interests of the Corporation to engage in the transactions
contemplated by the Purchase Agreement, including, but not limited to, the issuance of 1,936,317
shares of Common Stock to Fusion as an initial commitment fee (the “Initial Commitment Shares”) and
the sale of shares of Common Stock to Fusion up to the available amount under the Purchase
Agreement (the “Purchase Shares”).



Transaction Documents




NOW, THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are
hereby approved and      (the “Authorized Officers”) are
severally authorized to execute and deliver the Purchase Agreement, and any other agreements or
documents contemplated thereby including, without limitation, a registration rights agreement (the
“Registration Rights Agreement”) providing for the registration of the shares of the Company’s
Common Stock issuable in respect of the Purchase Agreement on behalf of the Corporation, with such
amendments, changes, additions and deletions as the Authorized Officers may deem to be appropriate
and approve on behalf of, the Corporation, such approval to be conclusively evidenced by the
signature of an Authorized Officer thereon; and



FURTHER RESOLVED, that the terms and provisions of the Registration Rights Agreement by and
among the Corporation and Fusion are hereby approved and the Authorized Officers are authorized to
execute and deliver the Registration Rights Agreement (pursuant to the terms of the Purchase
Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may
deem appropriate and approve on behalf of, the Corporation, such approval to be conclusively
evidenced by the signature of an Authorized Officer thereon; and



FURTHER RESOLVED, that the terms and provisions of the Form of Transfer Agent Instructions
(the “Instructions”) are hereby approved and the Authorized Officers are authorized to execute and
deliver the Instructions (pursuant to the terms of the Purchase Agreement), with such amendments,
changes, additions and deletions as the Authorized Officers may deem appropriate and approve on
behalf of, the Corporation, such approval to be conclusively evidenced by the signature of an
Authorized Officer thereon; and



Execution of Purchase Agreement




FURTHER RESOLVED, that the Corporation be and it hereby is authorized to execute the Purchase
Agreement providing for the purchase of common stock of the Corporation having an aggregate value
of up to $15,000,000; and



Issuance of Common Stock



FURTHER RESOLVED, that the Corporation is hereby authorized to issue 1,936,317 shares of
Common Stock to Fusion Capital Fund II, LLC as Initial Commitment Shares and that upon issuance of
the Initial Commitment Shares pursuant to the Purchase Agreement, the Initial Commitment Shares
shall be duly authorized, validly issued, fully paid and nonassessable with no personal liability
attaching to the ownership thereof; and



FURTHER RESOLVED, that the Corporation is hereby authorized to issue shares of Common Stock
upon the purchase of Purchase Shares up to the available amount under the Purchase Agreement in
accordance with the terms of the Purchase Agreement and that, upon issuance of the Purchase Shares
pursuant to the Purchase Agreement, the Purchase Shares will be duly authorized, validly issued,
fully paid and nonassessable with no personal liability attaching to the ownership thereof; and



FURTHER RESOLVED, that the Corporation shall initially reserve 22,692,665 shares of Common
Stock for issuance as Purchase Shares under the Purchase Agreement.



FURTHER RESOLVED, that the Corporation is hereby authorized to issue 1,936,317 shares of
Common Stock (subject to equitable adjustment for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction) in connection with the purchase of Purchase
Shares (the “Additional Commitment Shares”) in accordance with the terms of the Purchase Agreement
and that, upon issuance of the Additional Commitment Shares pursuant to the Purchase Agreement, the
Additional Commitment Shares will be duly authorized, validly issued, fully paid and nonassessable
with no personal liability attaching to the ownership thereof; and



FURTHER RESOLVED, that the Corporation shall initially reserve 1,936,317 shares of Common
Stock (subject to equitable adjustment for any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction) for issuance as Additional Commitment Shares under the
Purchase Agreement.



Approval of Actions




FURTHER RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each
of them hereby is, authorized and directed to proceed on behalf of the Corporation and to take all
such steps as deemed necessary or appropriate, with the advice and assistance of counsel, to cause
the Corporation to consummate the agreements referred to herein and to perform its obligations
under such agreements; and



FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized,
empowered and directed on behalf of and in the name of the Corporation, to take or cause to be
taken all such further actions and to execute and deliver or cause to be executed and delivered all
such further agreements, amendments, documents, certificates, reports, schedules, applications,
notices, letters and undertakings and to incur and pay all such fees and expenses as in their
judgment shall be necessary, proper or desirable to carry into effect the purpose and intent of any
and all of the foregoing resolutions, and that all actions heretofore taken by any officer or
director of the Corporation in connection with the transactions contemplated by the agreements
described herein are hereby approved, ratified and confirmed in all respects.



IN WITNESS WHEREOF, the Board of Directors has executed and delivered this Consent effective
as of      , 2008.



     



     



     



13




being all of the directors of AASTROM BIOSCIENCES, INC.EXHIBIT C-2




FORM OF COMPANY RESOLUTIONS APPROVING REGISTRATION STATEMENT




UNANIMOUS WRITTEN CONSENT OF

AASTROM BIOSCIENCES, INC.




Pursuant to Section      of the      , the undersigned, being all of the directors of
AASTROM BIOSCIENCES, INC., a Michigan corporation (the “Corporation”) do hereby consent to and
adopt the following resolutions as the action of the Board of Directors for and on behalf of the
Corporation and hereby direct that this Consent be filed with the minutes of the proceedings of the
Board of Directors.



WHEREAS, there has been presented to the Board of Directors of the Corporation a Common Stock
Purchase Agreement (the “Purchase Agreement”) by and among the Corporation and Fusion Capital Fund
II, LLC (“Fusion”), providing for the purchase by Fusion of up to Fifteen Million Dollars
($15,000,000) of the Corporation’s common stock, no par value (the “Common Stock”); and



WHEREAS, after careful consideration of the Purchase Agreement, the documents incident thereto
and other factors deemed relevant by the Board of Directors, the Board of Directors has approved
the Purchase Agreement and the transactions contemplated thereby and the Company has executed and
delivered the Purchase Agreement to Fusion; and



WHEREAS, in connection with the transactions contemplated pursuant to the Purchase Agreement,
the Company has agreed to file a registration statement with the Securities and Exchange Commission
(the “Commission”) registering the Commitment Shares (as defined in the Purchase Agreement) and the
Purchase Shares (as herein defined in the Purchase Agreement) and to list the Commitment Shares and
Purchase Shares on the Nasdaq Capital Market;



WHEREAS, the management of the Corporation has prepared an initial draft of a Registration
Statement on Form S-1 (the “Registration Statement”) in order to register the sale of the Purchase
Shares, and the Commitment Shares (collectively, the “Shares”); and



WHEREAS, the Board of Directors has determined to approve the Registration Statement and to
authorize the appropriate officers of the Corporation to take all such actions as they may deem
appropriate to effect the offering.



NOW, THEREFORE, BE IT RESOLVED, that the officers and directors of the Corporation be, and
each of them hereby is, authorized and directed, with the assistance of counsel and accountants for
the Corporation, to prepare, execute and file with the Commission the Registration Statement, which
Registration Statement shall be filed substantially in the form presented to the Board of
Directors, with such changes therein as the Chief Executive Officer of the Corporation or any Vice
President of the Corporation shall deem desirable and in the best interest of the Corporation and
its shareholders (such officer’s execution thereof including such changes shall be deemed to
evidence conclusively such determination); and



FURTHER RESOLVED, that the officers of the Corporation be, and each of them hereby is,
authorized and directed, with the assistance of counsel and accountants for the Corporation, to
prepare, execute and file with the Commission all amendments, including post-effective amendments,
and supplements to the Registration Statement, and all certificates, exhibits, schedules, documents
and other instruments relating to the Registration Statement, as such officers shall deem necessary
or appropriate (such officer’s execution and filing thereof shall be deemed to evidence
conclusively such determination); and



FURTHER RESOLVED, that the execution of the Registration Statement and of any amendments and
supplements thereto by the officers and directors of the Corporation be, and the same hereby is,
specifically authorized either personally or by the Authorized Officers as such officer’s or
director’s true and lawful attorneys-in-fact and agents; and



FURTHER RESOLVED, that the Authorized Officers are hereby designated as “Agent for Service” of
the Corporation in connection with the Registration Statement and the filing thereof with the
Commission, and the Authorized Officers hereby are authorized to receive communications and notices
from the Commission with respect to the Registration Statement; and



FURTHER RESOLVED, that the officers of the Corporation be, and each of them hereby is,
authorized and directed to pay all fees, costs and expenses that may be incurred by the Corporation
in connection with the Registration Statement; and



FURTHER RESOLVED, that it is desirable and in the best interest of the Corporation that the
Shares be qualified or registered for sale in various states; that the officers of the Corporation
be, and each of them hereby is, authorized to determine the states in which appropriate action
shall be taken to qualify or register for sale all or such part of the Shares as they may deem
advisable; that said officers be, and each of them hereby is, authorized to perform on behalf of
the Corporation any and all such acts as they may deem necessary or advisable in order to comply
with the applicable laws of any such states, and in connection therewith to execute and file all
requisite papers and documents, including, but not limited to, applications, reports, surety bonds,
irrevocable consents, appointments of attorneys for service of process and resolutions; and the
execution by such officers of any such paper or document or the doing by them of any act in
connection with the foregoing matters shall conclusively establish their authority therefor from
the Corporation and the approval and ratification by the Corporation of the papers and documents so
executed and the actions so taken; and



FURTHER RESOLVED, that if, in any state where the securities to be registered or qualified for
sale to the public, or where the Corporation is to be registered in connection with the public
offering of the Shares, a prescribed form of resolution or resolutions is required to be adopted by
the Board of Directors, each such resolution shall be deemed to have been and hereby is adopted,
and the Secretary is hereby authorized to certify the adoption of all such resolutions as though
such resolutions were now presented to and adopted by the Board of Directors; and



FURTHER RESOLVED, that the officers of the Corporation with the assistance of counsel be, and
each of them hereby is, authorized and directed to take all necessary steps and do all other things
necessary and appropriate to effect the listing of the Shares on the Nasdaq Capital Market.



Approval of Actions




FURTHER RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each
of them hereby is, authorized and directed to proceed on behalf of the Corporation and to take all
such steps as are deemed necessary or appropriate, with the advice and assistance of counsel, to
cause the Corporation to take all such action referred to herein and to perform its obligations
incident to the registration, listing and sale of the Shares; and



FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized,
empowered and directed on behalf of and in the name of the Corporation, to take or cause to be
taken all such further actions and to execute and deliver or cause to be executed and delivered all
such further agreements, amendments, documents, certificates, reports, schedules, applications,
notices, letters and undertakings and to incur and pay all such fees and expenses as in their
judgment shall be necessary, proper or desirable to carry into effect the purpose and intent of any
and all of the foregoing resolutions, and that all actions heretofore taken by any officer or
director of the Corporation in connection with the transactions contemplated by the agreements
described herein are hereby approved, ratified and confirmed in all respects.



IN WITNESS WHEREOF, the Board of Directors has executed and delivered this Consent effective as of
     , 2008.



     



     



     



being all of the directors of AASTROM BIOSCIENCES, INC.

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EXHIBIT D



FORM OF SECRETARY’S CERTIFICATE




This Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 7(k) of
that certain Common Stock Purchase Agreement dated as of      , (“Common Stock Purchase
Agreement”), by and between AASTROM BIOSCIENCES, INC., a Michigan corporation (the “Company”) and
FUSION CAPITAL FUND II, LLC (the “Buyer”), pursuant to which the Company may sell to the Buyer up
to Fifteen Million Dollars ($15,000,000) of the Company’s Common Stock, no par value per share (the
“Common Stock”). Terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Common Stock Purchase Agreement.



The undersigned,      , Secretary of the Company, hereby certifies as follows:



1. I am the Secretary of the Company and make the statements contained in this
Secretary’s Certificate.



2. Attached hereto as Exhibit A and Exhibit B are true, correct
and complete copies of the Company’s bylaws (“Bylaws”) and Certificate of
Incorporation (“Articles”), in each case, as amended through the date hereof, and no
action has been taken by the Company, its directors, officers or shareholders, in
contemplation of the filing of any further amendment relating to or affecting the
Bylaws or Articles.



3. Attached hereto as Exhibit C are true, correct and complete copies
of the resolutions duly adopted by the Board of Directors of the Company on
     , at which a quorum was present and acting throughout. Such
resolutions have not been amended, modified or rescinded and remain in full force
and effect and such resolutions are the only resolutions adopted by the Company’s
Board of Directors, or any committee thereof, or the shareholders of the Company
relating to or affecting (i) the entering into and performance of the Common Stock
Purchase Agreement, or the issuance, offering and sale of the Purchase Shares and
the Commitment Shares and (ii) and the performance of the Company of its obligation
under the Transaction Documents as contemplated therein.



4. As of the date hereof, the authorized, issued and reserved capital stock of the Company is as
set forth on Exhibit D hereto.



IN WITNESS WHEREOF, I have hereunder signed my name on this      day of      .



     



Secretary



The undersigned as      of      , a      corporation, hereby certifies that
     is the duly elected, appointed, qualified and acting Secretary of      , and that
the signature appearing above is his genuine signature.



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___________________________________EXHIBIT E




FORM OF LETTER TO THE TRANSFER AGENT FOR THE ISSUANCE OF THE COMMITMENTS SHARES AT SIGNING OF THE

PURCHASE AGREEMENT




[COMPANY LETTERHEAD]




[DATE]



[TRANSFER AGENT]


     


     


     



Re: Issuance of Common Shares to Fusion Capital Fund II, LLC



Dear      ,



On behalf of AASTROM BIOSCIENCES, INC., (the “Company”), you are hereby instructed to issue as
soon as possible 1,936,317 shares of our common stock in the name of Fusion Capital Fund
II, LLC. The share certificate should be dated [DATE OF THE COMMON STOCK PURCHASE AGREEMENT].
I have included a true and correct copy of a unanimous written consent executed by all of the
members of the Board of Directors of the Company adopting resolutions approving the issuance of
these shares. The shares should be issued subject to the following restrictive legend:



THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.



The share certificate should be sent as soon as possible via overnight mail to the
following address:




Fusion Capital Fund II, LLC




222 Merchandise Mart Plaza, Suite 9-112




Chicago, IL 60654




Attention: Steven Martin



Thank you very much for your help. Please call me at      if you have any questions or
need anything further.



AASTROM BIOSCIENCES, INC.



BY:     



[name]



[title]




16