EXHIBIT 4.1
TERMINATION AGREEMENT
TERMINATION AGREEMENT (the “Agreement”), dated as of
May 27, 2009, by and between AASTROM BIOSCIENCES, INC.
, a Michigan corporation, (the “Company”), and
FUSION CAPITAL FUND II, LLC, an Illinois limited liability
company (the “Buyer”).
WHEREAS, the Buyer and the Company mutually desire to
terminate the Common Stock Purchase Agreement dated as of
October 27, 2008, by and between the Company and the Buyer
(the “Purchase Agreement”) and the agreements entered
into in connection with the Purchase Agreement. All capitalized
terms used in this Agreement that are not defined in this Agreement
shall have the meanings set forth in the Purchase
Agreement.
NOW
THEREFORE , the Company
and the Buyer hereby agree as follows:
1. TERMINATION OF THE PURCHASE
AGREEMENT.
The
Purchase Agreement, and the other Transaction Documents between the
Buyer and the Company related to the Purchase Agreement (other than
this Agreement) are hereby terminated effective as of the date
hereof and any and all rights, duties and obligations arising
thereunder or in connection with the Purchase Agreement, and the
Transaction Documents are now and hereafter fully and finally
terminated, provided, however, that (i) the representations
and warranties of the Buyer and Company contained in
Sections 2, 3 and 5 of the Purchase Agreement, (ii) the
indemnification provisions set forth in Section 8 of the
Purchase Agreement, and (iii) the agreements and covenants set
forth in Section 11 of the Purchase Agreement shall survive
such termination and shall continue in full force and effect (the
“Surviving Obligations”).
2. MISCELLANEOUS.
(a) Governing Law; Jurisdiction; Jury
Trial . All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of 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 AN
