Aastrom Biosciences, Inc.
As filed with the Securities and Exchange Commission on February 12, 2007
Registration No. 333-______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Aastrom Biosciences, Inc.
(Exact name of registrant as specified in its charter)
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Michigan
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94-3096597 |
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(State or other jurisdiction
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(I.R.S. employer identification no.) |
of incorporation or organization) |
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24 Frank Lloyd Wright Drive
P.O. Box 376
Ann Arbor, Michigan 48106
(Address of principal executive offices) (Zip code)
Aastrom Biosciences, Inc. 2004 Equity Incentive Plan
(Full title of the plan)
George W. Dunbar
President and Chief Executive Officer
Aastrom Biosciences, Inc.
24 Frank Lloyd Wright Drive
P.O. Box 376
Ann Arbor, Michigan 48106
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (734) 930-5555
This registration statement shall hereafter become effective in accordance with Rule 462
promulgated under the Securities Act of 1933, as amended (the Securities Act).
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Amount |
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maximum |
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maximum |
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Amount of |
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Title of securities to |
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to be |
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offering price |
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aggregate |
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registration |
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be registered1 |
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registered2 |
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per share3 |
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offering price3 |
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fee |
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2004 Equity Incentive Plan
Common Stock
($0 par value)
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8,000,000 |
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$ |
1.425 |
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11,400,000 |
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$ |
1,220 |
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1 |
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The securities to be registered include options
and rights to acquire Common Stock. |
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2 |
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Pursuant to Rule 416(a) promulgated under the
Securities Act, this registration statement also covers any additional
securities that may be offered or issued in connection with any stock split,
stock dividend or similar transaction. |
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3 |
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Estimated pursuant to Rule 457 promulgated under
the Securities Act solely for purposes of calculating the registration fee. As
to the shares issuable pursuant to the 2004 Equity Incentive Plan, the price is
based upon the average of the high and low prices of the Common Stock on
February 6, 2007, as reported on the Nasdaq Stock Market. |
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Aastrom Biosciences, Inc. (the Company) hereby incorporates by reference in this
registration statement the following documents:
(a) The Companys Annual Report on Form 10-K for the year ended June 30, 2006, as filed with
the Securities and Exchange Commission on September 13, 2006 (File Number 000-22025).
(b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the Exchange Act) since the end of the fiscal year
covered by the document referred to in (a) above.
(c) The description of the Companys Common Stock contained in the Companys Registration
Statement on Form 8-A, filed pursuant to Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration
statement which indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Sections 1561 through 1571 of the Michigan Business Corporation Act (the MBCA) authorize a
corporation to grant or a court to award, indemnity to directors, officers, employees and agents in
terms sufficiently broad to permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities Act of 1933.
The Bylaws of the Company provide that the Company shall, to the fullest extent authorized or
permitted by the MBCA, or other applicable law, indemnify a director or officer who was or is a
party or is threatened to be made a party to any proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact that such person is or was a director,
officer, employee or agent of the Company, against expenses, including actual and reasonable
attorneys fees, and amounts paid in settlement incurred in connection with the action or suit, if
the indemnitee acted in good faith and in a manner the person reasonably believed to be in, or not
opposed to, the best interests of the Company or its shareholders. This section also authorizes
the Company to advance expenses incurred by any agent of the Company in defending any proceeding
prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of
the agent to repay such amount unless it shall be determined ultimately that the agent is entitled
to be indemnified.
The Bylaws also authorize the Company to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Company against any liability
asserted against or incurred by such person in such capacity or arising out of such persons status
as such, regardless of whether the Company would have the power to indemnify such person against
such liability under the provisions of the MBCA.
The Company has entered into indemnification agreements with certain individuals which contain
provisions that may in some respects be broader than the specific indemnification provisions
contained under applicable law. The indemnification agreement may require the Company, among other
things, to indemnify such directors, officers and key personnel against certain liabilities that
may arise by reason of their status or service as directors, officers or employees of the Company,
to advance the expenses incurred by such parties as a result of any threatened claims or
proceedings brought against them as to which they could be indemnified, and to the maximum extent
that insurance coverage of such directors, officers and key employees under the Companys
directors and officers liability insurance policies is maintained.
Section 1209 of the MBCA permits a Michigan corporation to include in its Articles of
Incorporation a provision eliminating or limiting a directors liability to a corporation or its
shareholders for monetary damages for breaches of fiduciary duty. The enabling statute provides,
however, that liability for breaches of the duty of loyalty, acts or omissions not in good faith or
involving intentional misconduct or knowing violations of the law, or the receipt of improper
personal benefits cannot be eliminated or limited in this manner. The Companys Restated Articles
of Incorporation include a provision which eliminates, to the fullest extent permitted by the MBCA,
director liability for monetary damages for breaches of fiduciary duty.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrants annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURE
Pursuant to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Ann Arbor, State of Michigan, on February 12, 2007.
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AASTROM BIOSCIENCES, INC.
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By: |
/s/ George W. Dunbar
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George W. Dunbar |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
The officers and directors of Aastrom Biosciences, Inc. whose signatures appear below, hereby
constitute and appoint George W. Dunbar and Gerald D. Brennan, Jr., and each of them, their true
and lawful attorneys and agents, with full power of substitution, each with power to act alone, to
sign and execute on behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their or his substitutes, shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated on February 12,
2007.
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Signature |
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Title |
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/s/ George W. Dunbar
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President and Chief Executive Officer and Director |
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(Principal Executive Officer) |
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Vice President, Administrative and Financial |
/s/ Gerald D. Brennan, Jr.
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Operations and Chief Financial Officer |
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(Principal Financial and Accounting Officer) |
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/s/ Stephen G. Sudovar |
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Chairman |
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/s/ Susan L. Wyant |
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Director |
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/s/ Timothy M. Mayleben |
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Director |
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/s/ Alan L. Rubino |
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Director |
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/s/ Nelson M. Sims |
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Director |
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/s/ Robert L. Zerbe |
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Director |
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EXHIBIT INDEX
4.1 |
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Restated Articles of Incorporation of the Company, as amended, are incorporated by reference
to Exhibit 3.1 to the Companys Annual Report on Form 10-K for the year ended June 30, 2006,
as filed with the Securities and Exchange Commission on September 13, 2006 (File Number
000-22025). |
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4.2 |
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Bylaws of the Company, as amended, are incorporated by reference to Exhibit 3.2 to the
Companys Annual Report on Form 10-K for the year ended June 30, 2005, as filed with the
Securities and Exchange Commission on September 13, 2005 (File Number 000-22025). |
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5 |
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Opinion re: legality |
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23.1 |
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Consent of Counsel (included in Exhibit 5) |
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23.2 |
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm |
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Power of Attorney (included in signature pages to this registration statement) |
Exhibit 5
EXHIBIT 5
Dykema Gossett PLLC
2723 South State Street
Suite 400
Ann Arbor, Michigan 48104
www.dykema.com
Tel: (734) 214-7660
Fax: (734) 214-7696
February 12, 2007
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
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Re: |
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Aastrom Biosciences, Inc. Registration Statement on Form S-8 Registering Shares Issuable
Under the 2004 Equity Incentive Plan |
Dear Ladies and Gentlemen:
As legal counsel for Aastrom Biosciences, Inc., a Michigan corporation (the Company), we are
rendering this opinion in connection with the registration under the Securities Act of 1933, as
amended, of up to an additional 8,000,000 shares of the Common Stock, no par value, of the Company
which may be issued pursuant to options and other rights to acquire Common Stock granted under the
Aastrom Biosciences, Inc. 2004 Equity Incentive Plan (the Plan).
We have examined all instruments, documents, and records that we deemed relevant and necessary
for the basis of our opinion hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the 8,000,000 shares of Common Stock
that may be issued under the Plan are duly authorized shares of the Companys Common Stock, and,
when issued against payment of the purchase price therefore and in accordance with the provisions
of the Plan, will be validly issued, fully paid, and non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration Statement referred
to above and to the use of our name wherever it appears in said Registration Statement.
Respectfully submitted,
Dykema
Gossett pllc
/s/ Dykema Gossett PLLC
Exhibit 23.2
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of
our report dated September 13, 2006, relating to the financial statements, financial statement
schedule, managements assessment of the effectiveness of internal control over financial reporting
and the effectiveness of internal control over financial reporting, which appears in Aastrom
Biosciences, Inc.s Annual Report on Form 10-K for the year ended June 30, 2006.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Detroit, Michigan
February 12, 2007