EXHIBIT
10.3
LOCK UP AND VOTING
AGREEMENT
LOCK UP AND VOTING AGREEMENT dated November 2,
2008 (the “ Voting Agreement ”) is by and
between NEOSTEM, INC., a Delaware corporation (the “
Parent ”), The CHINA BIOPHARMACEUTICALS HOLDINGS,
INC., a Delaware corporation (the “ Company ”),
and the individuals or entities listed on Schedule A annexed
hereto (collectively, the “ Stockholders ” and
each individually is a “ Stockholder
”).
RECITALS
WHEREAS, concurrent with the execution of this
Voting Agreement, the Company, Parent and CBH Acquisition LLC
(“ Subco ”), a Delaware limited liability
company and a wholly owned subsidiary of Parent, have entered into
an Agreement and Plan of Merger dated of even date herewith (as
amended from time to time, the “ merger agreement
”) pursuant to which the Company, which owns 51% of the
equity of Suzhou Erye Pharmaceuticals Co. Ltd (“ Erye
”), will be merged with and into Subco with Subco continuing
as the surviving company and as a direct wholly owned subsidiary of
Parent (the “ merger ”);
WHEREAS, the Stockholders are the record and
beneficial owners of certain shares of common stock, par value
$0.001 per share, of the Parent (the “ Common Shares
”) in the amounts set forth opposite the Stockholder’s
name on Schedule A hereto, and/or may become, at any time
after the date hereof, the record and beneficial owners of shares
of capital stock of Parent (the Common Shares and any shares of
capital stock of Parent that may be acquired after the date hereof
are collectively referred to herein as the “ Shares
”); and
WHEREAS, as an inducement and a condition to
entering into the merger agreement, the Company desires that each
of the Stockholders agree, and each of the Stockholders is willing
to agree, to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parent, the Company and each of the Stockholders, intending to be
legally bound, hereby agree as follows:
1.
Certain Definitions . In addition to the terms
defined elsewhere herein, capitalized terms used and not defined
herein have the respective meanings ascribed to them in the merger
agreement. For purposes of this Voting
Agreement:
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“ Beneficially Own” or
“ Beneficial Ownership” with respect to any
securities means having “beneficial ownership” of such
securities as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), including pursuant to any agreement,
arrangement or understanding, whether or not in
writing. Without duplicative counting of the same
securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other
Persons with whom such Person would constitute a
“group” within the meaning of Section 13(d)(3) of the
Exchange Act.
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“ Person” means any
individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
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2.
Disclosure . Each of the Stockholders hereby
agrees to permit the Company and Parent to publish and disclose in
the Company’s Proxy Statement, and any press release or other
disclosure document which Parent and the Company reasonably
determine to be necessary or desirable in connection with the
merger and any transactions related thereto, each
Stockholder’s identity and ownership of the Shares and the
nature of each Stockholder’s commitments, arrangements and
understandings under this Voting Agreement.
3.
Voting of Shares . Each of the Stockholders,
to the extent they are holders of Shares,
in satisfaction of all contractual and legal
requirements, hereby: (i) consents to the Parent’s
execution and delivery of the merger agreement and the taking of
all actions by the Company to effect the merger; and (ii)
agrees that, during the period commencing on the date hereof and
continuing until the Termination Date (as defined below),
contemporaneously with any meeting of the holders of the Shares,
however called, or in connection with any written consent of the
holders of the Shares, the Stockholder shall cause the Shares held of record or Beneficially Owned by
the Stockholder, whether now owned or hereafter acquired, to
consent in writing to the merger, adoption of the merger agreement
and any actions required in furtherance thereof.
4.
Covenants, Representations and Warranties of the Parent and each
Stockholder . Each of the Stockholders hereby
severally represents and warrants (with respect to such Stockholder
only and not with respect to each other Stockholder) to, and agrees
with, the Company as follows:
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Ownership of Securities . Such Stockholder is the sole record
and Beneficial Owner of the number of shares set forth opposite
such Stockholder’s name on Schedule A
hereto. On the date hereof, the Shares set forth
opposite the Stockholder’s name on Schedule A hereto
constitute all of the Shares or other securities of the Parent
owned of record or Beneficially Owned by such Stockholder or with
respect to which such Stockholder has voting power by proxy, voting
agreement, voting trust or other similar
instrument. Such Stockholder has sole voting power and
sole power to issue instructions with respect to the matters set
forth in Section 3 hereof, sole power of disposition, sole power of
conversion, sole power to demand and waive appraisal rights and
sole power to agree to all of the matters set forth in this Voting
Agreement, in each case with respect to all of the Shares set forth
opposite such Stockholder’s name on the signature page
hereof, with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws, and the terms of
this Voting Agreement.
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Authorization . Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder’s obligations under this Voting
Agreement. The execution, delivery and performance of
this Voting Agreement by such Stockholder will not violate any
other agreement to which such Stockholder is a party including,
without limitation, any voting agreement, stockholders agreement,
voting trust, trust or similar agreement. This Voting
Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement
enforceable against such Stockholder in accordance with its
terms. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which such
Stockholder is a trustee whose consent is required for the
execution and delivery of this Voting Agreement or the consummation
by such Stockholder of the transactions contemplated
hereby. If such Stockholder is married and such
Stockholder’s Shares constitute community property, this
Voting Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, such
Stockholder’s spouse, enforceable against such person in
accordance with its terms.
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No Conflicts . (i) Except as may be
required under Section 13 of the Exchange Act, no filing with, and
no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of
this Voting Agreement by such Stockholder and the consummation by
such Stockholder of the transactions contemplated hereby and (ii)
none of the execution and delivery of this Voting Agreement by such
Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder
with any of the provisions hereof shall (A) conflict with or result
in any breach of the organizational documents of such Stockholder
(if applicable), (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any
kind to which such Stockholder is a party or by which such
Stockholder or any of its properties or assets may be bound, or (C)
violate any order, writ injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or any
of its properties or assets.
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No Encumbrances . Such Stockholder’s Shares at
all times during the term hereof will be Beneficially Owned by such
Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever.
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No Solicitation . Such Stockholder agrees not to take
any action inconsistent with or in violation of the merger
agreement.
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Restriction on Transfer; Proxies and
Non-Interference . At any time during the period (the
“ Lock-Up Period ”) from the date hereof until
the earlier of (i) one hundred and eighty (180) days following the
closing of the Merger or (ii) the termination of the Merger
Agreement, such Stockholder shall not, directly or indirectly, (i)
except for a Permitted Transfer (as defined below) and except as
contemplated by the merger agreement, offer for sale,
sel
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