SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
000
Xxxxxxxxx Xxxxxx
Xxxxx
000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Chief Executive Officer
Ladies
and Gentlemen:
The
undersigned investor (the “Investor”),
under
the following terms and conditions, offers to subscribe (the “Offer”)
for
the securities of NeoStem, Inc., a Delaware corporation (the “Company”
or
“NeoStem”).
The
Company is issuing units (the “Units”)
at a
per Unit price of $1.25 with each Unit consisting of (a) one share (the
“Common
Shares”)
of
common stock, $.001 par value (the “Common
Stock”)
and
(b) one accompanying warrant (each, a “Warrant”
and
together the “Warrants”)
for
the purchase
of one share of the Common Stock at an exercise price equal to $1.75, subject
to
adjustment, expiring five years from the date of issuance (the shares of the
Common Stock issuable under the Warrants are referred to as the “Warrant
Shares”).
The
form
of the Warrants is attached hereto as Exhibit
A.
The
Company is offering 1,000,000 Units (the “Offering”).
The
Investor understands that the Units are being issued pursuant to one or more
exemptions from the registration requirements of the Securities Act of 1933,
as
amended (the “Securities
Act”
or
the
“Act”),
in
a
Offering pursuant to an exemption from registration under Regulation S
promulgated under the
Act
(“Regulation
S”).
As
such, the Common Stock, the Warrants and the Warrant Shares each are
“restricted
securities”
and
may
not be sold or transferred absent a registration statement declared effective
under the Act or an exemption from the registration requirements of the
Act.
1. Subscription.
The
closing (the “Closing”)
of the
transactions hereunder shall take place at the offices of the Company or at
such
other location as the Company may determine after the receipt by the Company
of
subscriptions for Units from the Investor and after it has been determined
that
all conditions in this Subscription Agreement have been met. At the Closing,
funds equal to the Subscription Amount of the Investor shall be delivered to
the
Company and the Company shall promptly thereafter deliver to the Investor his,
her or its respective Shares and Warrants as provided herein.
Subject
to the terms and conditions hereinafter set forth in this Subscription Agreement
and the Company’s due execution of this Subscription Agreement, the Investor
hereby offers to subscribe for Units as set forth in the Investor Signature
Page
attached hereto and contemporaneously herewith makes payment for the purchase
of
the Units by wire transfer or bank check.
2. Conditions.
The
Offer
is made subject to the following conditions: (i) that the Company, acting in
good faith, shall have the right to accept or reject the Offer, in whole or
in
part, for any reason; (ii) that the Investor agrees to comply with the terms
of
this Subscription Agreement; and (iii) the American Stock Exchange shall have
approved this offering.
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Acceptance
of this Offer shall be deemed given by the countersigning of this Subscription
Agreement by the Company. In the event the Company does not accept the Offer,
any and all proceeds for the purchase of the Units by the Investor shall be
returned to the Investor.
3. Representations,
Warranties and Covenants of the Investor.
The
Investor, in order to induce the Company to accept this Offer, hereby warrants,
represents and covenants as follows:
(a) Organization;
Authority.
The
Investor, if not an individual, is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization
with
the requisite power and authority to enter into and to consummate the
transactions contemplated by this Subscription Agreement and otherwise to carry
out its obligations hereunder. The purchase by the Investor of the Units
hereunder has been duly authorized by all necessary action on the part of the
Investor. This Subscription Agreement has been duly executed by the Investor,
and when delivered by the Investor in accordance with the terms hereof, will
constitute the valid and legally binding obligation of the Investor, enforceable
against it in accordance with its terms, except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors’ rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
(b) Investor
Representation.
The
Investor understands that the Units,
Common Shares, Warrants and Warrant Shares (collectively, the “Securities”),
are
each
“restricted securities” and have not been registered under the Securities Act or
qualified under any applicable state securities law by reason of their issuance
in a transaction that does not require registration or qualification (based
in
part on the accuracy of the representations and warranties of the Investor
contained herein), and that such securities must be held indefinitely unless
a
subsequent disposition is registered under the Securities Act or any applicable
state securities laws or is exempt from such registration. The Investor hereby
agrees that the Company may insert the following or similar legend on the face
of the certificates evidencing the Securities
if
required in compliance with federal and state securities laws:
"THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISTRIBUTED, DIRECTLY
OR INDIRECTLY, IN THE UNITED STATES, ITS TERRITORIES, POSSESSIONS, OR AREAS
SUBJECT TO ITS JURISDICTION, OR TO OR FOR THE ACCOUNT OR BENEFIT OF A "U.S.
PERSON" AS THAT TERM IS DEFINED IN RULE 902 OR REGULATION S OF THE ACT, AT
ANY
TIME PRIOR TO ONE (1) YEAR AFTER THE ISSUANCE OF THIS CERTIFICATE, IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE
ACT, OR (ii) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED PURSUANT TO A VALID EXEMPTION THEREFROM FROM
UNDER THE ACT. HEDGING TRANSACTIONS INVOLVING THE SHARES REPRESENTED HEREBY
MAY
NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT. ANY SALES, TRANSFERS OR
OTHER DISTRIBUTIONS OF THE SECURITIES MUST BE MADE IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S OF THE ACT. THIS CERTIFICATE MUST BE SURRENDERED
TO
THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, TRANSFER
OR OTHER DISTRIBUTION OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED
BY
THIS CERTIFICATE."
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The
Investor understands and acknowledges that the U.S. Securities and Exchange
Commission (the “Commission”)
currently takes the position that coverage of short sales of shares of the
Common Stock “against the box” prior to the effective date of a registration
statement registering the re-sale of the Common Shares and the Warrant Shares
is
a violation of Section 5 of the Securities Act, as set forth in Item 65, Section
5 under Section A, of the Manual of Publicly Available Telephone
Interpretations, dated July 1997, compiled by the Office of Chief Counsel,
Division of Corporation Finance. Accordingly, without limiting the restrictions
set forth in Section (c) hereof the Investor agrees not to use any of the Common
Shares or Warrant Shares to cover any short sales made prior to the effective
date of such registration statement.
(c) Regulation
S.
This
Agreement is made by the Company with the Investor in reliance upon the
Investor's representations, warranties and covenants made in this Agreement.
The
Investor is a Non-U.S. Person (as defined herein). As used herein, the term
“United
States”
means
and includes the United States of America, its territories and possessions,
any
State of the United States, and the District of Columbia, and the term
“Non-U.S.
Person”
means
any person who is not a U.S. Person, within the meaning of Regulation S, the
definition of which is set forth on Schedule
A
attached
hereto, or is deemed not to be a U.S. Person pursuant to Rule 902(k)(2) of
Regulation S, as set forth on Schedule
B
attached
hereto.
(1) The
Investor has been advised and acknowledges that:
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(1)
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the
Securities have not been, and when issued, will not be registered
pursuant
to the Securities Act, the securities laws of any state of the United
States or the securities laws of any other
country;
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(2)
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in
issuing and selling the Securities to the Investor pursuant hereto,
the
Company is relying upon the “safe harbor” provided by Regulation
S;
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(3)
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it
is a condition to the availability of the Regulation S “safe harbor” that
the Securities not be offered or sold in the United States or to
a U.S.
Person until the expiration of a period of one year following the
Closing
(the “Restricted
Period”);
and
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(4)
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notwithstanding
the foregoing, prior to the expiration of the Restricted Period the
Securities may be offered or sold by the holder thereof if such offer
and
sale is made in compliance with the terms of this Agreement and either:
(A) if the offer or sale is within the United States or to or for
the
account of a U.S. Person (as such terms are defined in Regulation
S), the
sale is made pursuant to an effective registration statement or pursuant
to an exemption from the registration requirements of the Securities
Act;
or (B) the offer and sale is outside the United States and to other
than a
U.S. Person.
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(ii) The
Investor agrees that with respect to the Securities until the expiration of
the
Restricted Period:
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(1)
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the
Investor, its agents or its representatives have not and will not
solicit
offers to buy, offer for sale or sell any of the Securities, or any
beneficial interest therein in the United States or to or for the
account
of a U.S. Person during the Restricted Period;
and
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(2)
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notwithstanding
the foregoing, prior to the expiration of the Restricted Period the
Securities shall not be offered or sold by the holder thereof unless
such
offer and sale is made in compliance with the terms of this Agreement
and
either: (A) if the offer or sale is within the United States or to
or for
the account of a U.S. Person (as such terms are defined in Regulation
S),
the sale is made pursuant to an effective registration statement
or
pursuant to an exemption from the registration requirements of the
Securities Act; or (B) the offer and sale is outside the United States
and
to other than a U.S. Person; and
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(3)
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the
Investor will not engage in hedging transactions with regard to the
Securities unless in compliance with the Securities
Act.
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The
foregoing restrictions are binding upon subsequent transferees of the
Securities, except for transferees pursuant to an effective registration
statement. The Investor agrees that after the Restricted Period, the Securities
may be offered or sold within the United States or to or for the account of
a
U.S. Person only pursuant to applicable securities laws, including, without
limitation, Regulation S.
(iii) The
Investor is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or other general solicitation or advertisement. The
Investor has not engaged, nor is it aware that any party has engaged, and the
Investor will not engage or cause any third party to engage, in any :directed
selling efforts," as such term is defined in Regulation S, in the United States
with respect to the Securities.
(iv) The
Investor: (1) is domiciled and has its principal place of business outside
the
United States; (2) certifies it is not a U.S. Person and is not acquiring the
Securities for the account or benefit of any U.S. Person; and (3) at the time
of
the Closing, the Investor or persons acting on the Investor's behalf in
connection therewith will be located outside the United States.
(v) At
the
time of offering to the Investor and communication of the Investor’s order to
purchase the Securities and at the time of the Investor’s execution of this
Agreement, the Investor or persons acting on the Investor’s behalf in connection
therewith were located outside the United States.
(vi) The
Investor is not a “distributor” (as defined in Regulation S) or a “dealer” (as
defined in the Securities Act).
(vii) The
Investor acknowledges that upon exercising the Warrants, the holder shall be
required to give: (1) written certification that it is not a U.S. Person and
the
warrant is not being exercised on behalf of a U.S. Person; or (2) a written
opinion of counsel to the effect that the Warrant and the Warrant Shares
delivered upon exercise thereof have been registered under the Securities Act
or
are exempt from registration thereunder. The Investor further acknowledges
that
procedures set forth in the Warrant have been implemented to ensure that the
Warrant may not be exercised within the United States, and that the Warrant
Shares may not be delivered within the United States upon exercise, other than
in offerings deemed to meet the definition of "offshore transaction pursuant
to
Rule 902(h) under Regulation S, unless registered under the Act or an exemption
from such registration is available.
(viii) The
Investor acknowledges that the Company shall make a notation in its stock books
regarding the restrictions on transfer set forth in this Agreement and shall
transfer such shares on the books of the Company only to the extent consistent
therewith. In particular, the Investor acknowledges that the Company shall
refuse to register any transfer of the Securities not made in accordance with
the provisions of Regulation S, pursuant to registration pursuant to the
Securities Act or pursuant to an available exemption from
registration.
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(ix) The
Investor hereby represents that the Investor is satisfied as to the full
observance of the laws of the Investor’s jurisdiction in connection with any
invitation to subscribe for the Securities or any use of the Agreement,
including (i) the legal requirements within such Investor's jurisdiction for
the
purchase of the Securities, (ii) any foreign exchange restrictions applicable
to
such purchase, (iii) any governmental or other consents that may need to be
obtained and (iv) the income tax and other tax consequences, if any, that may
be
relevant to the purchase, holding, redemption, sale or transfer of the
Securities. The Investor’s subscription and payment for, and the Investor's
continued beneficial ownership of, the Securities will not violate any
applicable securities or other laws of the Investor’s jurisdiction.
(x) The
Investor is a resident of a country (an “International
Jurisdiction”)
other
than Canada or the United States and the decision to subscribe for the
Securities was taken in such International Jurisdiction.
(xi) The
delivery of this Subscription Agreement, the acceptance of it by the Company
and
the issuance of the Securities to the Investor complies with all laws applicable
to the Investor, including the laws of the Investor’s jurisdiction of formation,
and all other applicable laws, and will not cause the Company to become subject
to, or require it to comply with, any disclosure, prospectus, filing or
reporting requirements under any applicable laws of the International
Jurisdiction.
(xii) The
Investor is knowledgeable of, or has been independently advised as to, the
application or jurisdiction of the securities laws of the International
Jurisdiction which would apply to the subscription (other than the securities
laws of Canada and the United States).
(xiii) The
Investor is purchasing the Securities pursuant to exemptions from the prospectus
and registration requirements (or their equivalent) under the applicable
securities laws of that International Jurisdiction or, if such is not
applicable, each is permitted to purchase the Securities under the applicable
securities laws of the International Jurisdiction without the need to rely
on an
exemption.
(xiv) The
applicable securities laws do not require the Company to register any of the
Securities, file a prospectus or similar document, or make any filings or
disclosures or seek any approvals of any kind whatsoever from any regulatory
authority of any kind whatsoever in the International Jurisdiction.
(xv) The
Investor will not sell, transfer or dispose of the Securities except in
accordance with all applicable laws, including, without limitation, applicable
securities laws of each of International Jurisdiction, Canada and the United
States, and the Investor acknowledges that the Company shall have no obligation
to register any such purported sale, transfer or disposition which violates
applicable, International Jurisdiction, Canadian or United States or other
securities laws.
(i) Experience
of Investor.
The
Investor, either alone or together with its representatives, has such knowledge,
sophistication, and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in
the
Securities, and has so evaluated the merits and risks of such investment. The
Investor is able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such
investment.
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(k) Access
to Information.
The
Investor has reviewed and understands the SEC Reports (as that term is defined
in Section 4(g)), as well as supplemental information with respect to the
Company's warrants provided pursuant to the e-mail sent on August 26, 2008
at
11:51 a.m. (New York Time) from Xxxxx Xxxxx, on behalf of the Company, to,
among
others, Xxxx Xxx, on behalf of the Investor (the "Supplemental
E-mail"),
and
neither the Company nor any of its representatives have made any other
representations or warranties to the Investor with respect to the Company except
as contained herein,
in the
SEC Reports or in the Supplemental E-mail. Specifically, the Investor
acknowledges that the SEC Reports disclose that the Company is actively
exploring acquisition opportunities and the Investor acknowledges that there
can
be no assurance that any such acquisition will be consummated. The Investor
has
also been afforded the opportunity to ask questions of, and receive answers
from, the officers and/or directors of the Company concerning the terms and
conditions of the Offering and to obtain any additional information, to the
extent that the Company possesses such information or can acquire it without
unreasonable effort or expense, necessary to verify the accuracy of the
information furnished; and has availed himself of such opportunity to the extent
he considers appropriate in order to permit him to evaluate the merits and
risks
of an investment in the Securities. It is understood that all documents,
records, and books pertaining to this investment have been made available for
inspection by the Investor during reasonable business hours at the Company’s
principal place of business. Notwithstanding the foregoing, it is understood
that the Investor is purchasing the Securities without being furnished any
prospectus setting forth all of the information that would be required to be
furnished under the Securities Act and this Offering has not been passed upon
or
the merits thereof endorsed or approved by any state or federal
authorities.
4. Representations
and Warranties of the Company.
The
Company hereby makes the following representations and warranties to the
Investor:
(a) Organization
and Qualification.
Each of
the Company and its subsidiaries (each, a “Subsidiary”)
is an
entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
(as applicable), with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted.
Neither
the Company nor any Subsidiary is in violation or default of any of the
provisions of its respective certificate or articles of incorporation, bylaws
or
other organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good standing
as a
foreign corporation or other entity in each jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing,
as
the case may be, would not have or reasonably be expected to result in (i)
a
material adverse effect on the legality, validity or enforceability of this
Subscription Agreement, (ii) a material adverse effect on the results of
operations, assets, business, prospects or financial condition of the Company
and the Subsidiaries, taken as a whole, or (iii) a material adverse effect
on
the Company’s ability to perform in any material respect on a timely basis its
obligations under this Subscription Agreement (any of (i), (ii), or (iii),
a
“Material
Adverse Effect”)
and no
Action (defined below) has been instituted in any such jurisdiction revoking,
limiting or curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.
(b) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the Offering, to issue the Units and, upon due exercise of the
Warrants, to duly issue the shares of Common Stock deliverable thereunder.
The
execution and delivery of this Subscription Agreement and the Units by the
Company and the consummation by it of the transactions contemplated hereby
have
been duly authorized by all necessary action on the part of the Company
and no further consent or action is required by the Company, other than the
Required Approvals (as defined below). This Subscription Agreement, when
executed and delivered in accordance with the terms hereof, will constitute
the
valid and binding obligation of the Company enforceable against the Company
in
accordance with its terms, except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors’ rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
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(c) No
Conflicts.
The
execution, delivery, and performance of this Subscription Agreement by the
Company and the consummation by the Company of the Offering and issuance of
the
Units does not and will not: (i) conflict with or violate any provision of
the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws
or other organizational or charter documents or (ii) subject to obtaining the
Required Approvals, conflict with, or constitute a default (or an event that
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 (with
or without notice, lapse of time or both) of any agreement, credit facility,
debt, or other instrument (evidencing the Company’s or a Subsidiaries’ debt or
otherwise) or other understanding to which the Company or either of the
Subsidiaries is a party or by which any property or asset of the Company or
its
Subsidiaries is bound or affected, or (iii) result in a violation of any law,
rule, regulation, order, judgment, injunction, decree, or other restriction
of
any court or governmental authority as currently in effect to which the Company
or any of the Subsidiaries is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or
either of the Subsidiaries is bound or affected; except in the case of each
of
clauses (ii) and (iii), such as could not, individually or in the aggregate
have
a Material Adverse Effect.
(d) Filings,
Consents, and Approvals.
Neither
the Company nor any of the Subsidiaries is required to obtain any consent,
waiver, authorization, or order of, give any notice to, or make any filing
or
registration with, any court or other federal, state, local, or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of this Subscription Agreement, other
than: (i) the filing with the Commission of the Registration Statement pursuant
to Section 5 and
(ii) any applicable Blue Sky filings (collectively,
the “Required
Approvals”).
(e) Issuance
of the Units.
The
Units, and each component or underlying security, are duly authorized and,
when
issued and paid for in accordance with this Subscription Agreement, will be
duly
and validly issued, fully paid and nonassessable, free and clear of all liens,
and not subject to any preemptive rights. The Company will reserve from its
duly
authorized capital stock a number of shares of Common Stock required for
issuance of the Warrant Shares.
(f) Capitalization.
The
number of shares and type of all authorized, issued, and outstanding capital
stock of the Company is as set forth in the SEC Reports as of the respective
dates set forth therein. No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
Offering. No
further approval or authorization of any stockholder, the Board of Directors
of
the Company, or others is required for the issuance and sale of the Units and
the underlying Warrant
Shares.
Upon
exercise of the Warrants in accordance with their terms, the Warrant Shares
issuable thereby will be deemed duly authorized, validly issued, fully paid
and
non-accessible in all respects.
(g) SEC
Reports; Financial Statements.
The
Company has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the one year preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing materials
being collectively referred to herein as the “SEC
Reports”).
As of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, 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. The Company has advised the Investor that a
copy
of each of the SEC Reports (together with all exhibits and schedules thereto
and
as amended to date) is available at xxxx://xxx.xxx.xxx,
a
website maintained by the Commission where the Investor may view the SEC
Reports.
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(h) Material
Changes.
Since
the date of the latest audited financial statements included in the SEC Reports,
except as specifically disclosed in the SEC Reports or referred to in this
Subscription Agreement, (i) there has been no event, occurrence, or development
that has had a Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission, (iii) the Company has not altered its method of
accounting or the identity of its auditors, and (iv) the Company has not
declared or made any dividend or distribution of cash or other property to
its
stockholders except in the ordinary course of business consistent with prior
practice, or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock except consistent with prior practice or
pursuant to existing Company stock option or similar plans.
(i) Litigation.
There
is no action, suit, inquiry, notice of violation, proceeding, or investigation
pending or, to the knowledge of the Company, threatened against or affecting
the
Company, the Subsidiaries or any of its properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local, or foreign) (collectively, an “Action”)
which:
(i) adversely affects or challenges the legality, validity or enforceability
of
this Subscription Agreement or the Units or (ii) could, if there were an
unfavorable decision, individually or in the aggregate, have or reasonably
be
expected to result in a Material Adverse Effect.
(j) Compliance.
Neither
the Company nor any Subsidiary (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is
in
default under or that it is in violation of, any indenture, loan or credit
agreement, (ii) is in violation of any order of any court, arbitrator or
governmental body, or (iii) is in violation of any statute, rule or regulation
of any governmental authority, including without limitation all foreign,
federal, state and local laws applicable to its business except in each case
as
could not have a Material Adverse Effect.
(k) Regulatory
Permits.
The
Company and the Subsidiaries possess the certificates, authorizations, and
permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct its business as described in the SEC Reports,
except where the failure to possess such permits would not, individually or
in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect (“Material
Permits”).
(l) Title
to Assets.
Except
as set forth in the SEC Reports, the Company and the Subsidiaries have good
and
marketable title in all real and personal property owned by them that is
material to the business of the Company and the Subsidiaries, in each case
free
and clear of any liens, encumbrances or other restrictions.
(m)Patents
and Trademarks.
To the
best of the Company’s knowledge, the Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses, and other
similar rights necessary or material for use in connection with their respective
businesses as described in the SEC Reports and which the failure to so have
could have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”).
Neither the Company nor any Subsidiary has received a written notice that the
Intellectual Property Rights used by the Company or any Subsidiary violates
or
infringes upon the rights of any Person. To the knowledge of the Company, all
such Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property Rights of
others.
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(n)Insurance.
The
Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent in the Company’s
reasonable discretion. The Company has no 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.
(o) Private
Placement.
Assuming the accuracy of the Investor representations and warranties set forth
in Section 3, no registration under the Securities Act is required for the
offer
and sale of the Units by the Company to the Investor as contemplated hereby
or
the exercise of the Warrants.
(p)No
General Solicitation.
Neither
the Company nor any Person acting on behalf of the Company has offered or sold
any of the Units by any form of general solicitation or general advertising.
The
Company has not engaged, nor is it aware that any party has engaged, and the
Company will not engage or cause any third party to engage, in any directed
selling efforts in the United States with respect to the
Securities.
(q)Foreign
Corrupt Practices.
The
Company has not to its knowledge (i) directly or indirectly, used any corrupt
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or
to
any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company (or made
by
any person acting on its behalf of which the Company is aware) which is in
violation of law, or (iv) violated in any material respect any provision of
the
Foreign Corrupt Practices Act of 1977, as amended
(r)Accountants.
The
Company’s accountants are set forth in the SEC Reports. To the Company’s
knowledge, such accountants, who the Company expects will express their opinion
with respect to the financial statements to be included in the Company’s
upcoming financial statements, are a registered public accounting firm as
required by the Securities Act.
(s)Listing
and Maintenance Requirements.
The
Company’s Common Stock currently is quoted on the American Stock Exchange
(“AMEX”).
5. Registration
Rights.
The
Company grants registration rights to the Investor under the following terms
and
conditions:
(a) The
Company will prepare and file (which may include the preparation and filing
of
one or more pre-effective amendments to any registration statements that relates
to the Company’s securities, which may be currently on file or may be
subsequently filed with the Commission), at its own expense, a registration
statement under the Securities Act (the “Registration
Statement”)
with
the Commission within one hundred and eighty (180) days of the final closing
of
the offering for the non-underwritten public offering and resale of the Common
Shares and the Warrant Shares (subject to adjustment as set forth in the
Warrants) (the “Registrable
Securities”)
through the facilities of all appropriate securities exchanges, if any, on
which
the Company’s Common Stock is being sold or on the over-the-counter market if
the Company’s Common Stock is quoted thereon. Such registration statement may
include securities required to be included by the Company pursuant to
registration rights granted by the Company prior to the date of this
Subscription Agreement. Notwithstanding
anything in this Subscription Agreement to the contrary, if the Commission
refuses to declare a Registration Statement filed pursuant to this Subscription
Agreement effective as a valid secondary offering under Rule 415 promulgated
pursuant to the Securities Act due to the number of securities included in
such
Registration Statement relative to the outstanding number of shares of the
Common Stock, then, without any liability under Section 5(f) or any further
obligation to register such excess Registrable Securities, the Company shall
be
permitted to reduce the number of Registrable Securities included in such
Registration Statement to an amount such that the number of securities included
in such Registration Statement does not exceed an amount that the Commission
allows for the offering thereunder to qualify as a valid secondary offering
under Rule 415. In this event, the Investor will have priority with respect
to the inclusion of the Common Shares and Warrant Shares vis-à-vis any
shareholder investing in the Company after the date of this Subscription
Agreement The Company shall not be liable for liquidated damages pursuant to
Section 5(f) under this Subscription Agreement or otherwise as to any
Registrable Securities which are not permitted by the Commission to be included
in a Registration Statement due solely to SEC Guidance from the time that it
is
determined that securities are not permitted to be registered due to SEC
Guidance or as to any delay occasioned by such SEC Guidance solely to the extent
it relates to the time needed to reduce the amount of securities included in
the
Registration Statement. In such case, the liquidated damages shall be
calculated to only apply to the percentage of Registrable Securities which
are
permitted in accordance with SEC Guidance to be included in such Registration
Statement. We are currently unaware of circumstances under which the Commission
may refuse to declare a Registration Statement filed pursuant to this
Subscription Agreement effective as a valid secondary offering under Rule 415
due to the number of securities included in such Registration Statement relative
to the outstanding number of shares of the Common Stock.
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“SEC
Guidance”
means
(i) any written or oral guidance, comments, requirements or requests of the
Commission staff and (ii) the Securities Act.
(b) The
Company will use its reasonable best efforts to cause such Registration
Statement to become effective. Subject to Section 5(a), the number of shares
designated in the Registration Statement to be registered shall include
appropriate language regarding reliance upon Rule 416 to the extent permitted
by
the Commission.
(c) The
Company will maintain the Registration Statement or post-effective amendment
filed under the terms of this Subscription Agreement effective under the
Securities Act until the earlier of (i) the date that all of the Registrable
Securities have been sold pursuant to such Registration Statement, (ii) all
Registrable Securities have been otherwise transferred to Persons who may trade
such shares without restriction under the Securities Act, and the Company has
delivered a new certificate or other evidence of ownership for such securities
not bearing a restrictive legend, (iii) all Registrable Securities may be sold
at any time, without volume or manner of sale limitations pursuant to Rule
144(k) or any similar provision then in effect under the Securities Act in
the
opinion of counsel to the Company, or (iv) one year from the effective date
of
the Registration Statement (the “Effectiveness
Period”).
(d) All
fees,
disbursements and out-of-pocket expenses and costs incurred by the Company
in
connection with the preparation and filing of the Registration Statement, in
making filings with NASD (including, without limitation, pursuant to NASD Rule
2710), and in complying with applicable federal securities laws (including,
without limitation, all attorneys’ fees of the Company) shall be borne by the
Company. The Investor shall bear any cost of underwriting and/or brokerage
discounts, fees, and commissions, if any, applicable to the Registrable
Securities being registered and sold by an underwriter for the Investor and
the
fees and expenses of their counsel. The Company shall use its reasonable best
efforts to qualify the Common Shares and Warrant Shares in the State of
residence of the Investor. However, the Company shall not be required to qualify
in any state which will require an escrow or other restriction relating to
the
Company and/or the sellers, or which will require the Company to qualify to
do
business in such state or require the Company to file therein any general
consent to service of process. The Company at its expense will supply the
Investor with copies of the applicable Registration Statement and any prospectus
included therein and other related documents in such quantities as may be
reasonably requested by the Investor.
(e) Certificates
evidencing the Registrable Securities shall not contain any legend: (i)
following any sale of Common Shares or Warrant Shares pursuant to Rule 144,
or
(ii) if such Common Shares or Warrant Shares are eligible for sale under Rule
144(k); or (iii) following any sale of Common Shares or Warrant Shares pursuant
to the Registration Statement; provided,
however,
in
connection with the sale or transfer of the Common Shares or Warrant Shares,
the
Investor hereby agrees to adhere to and abide by all prospectus delivery
requirements under the Securities Act and rules and regulations of the
Commission and provide the Company with customary documentation, as applicable.
The Company shall cause its counsel to issue a legal opinion to the Company’s
transfer agent promptly upon request of the Investor if required by the
Company’s transfer agent to effect the removal of the legend
hereunder.
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(f) In
the
event that the Registration Statement is not filed as set forth in above, and
the Company does not use its reasonable best efforts to respond to any comments
of the SEC within twenty (20) business days following receipt thereof, then
the
Company will issue to the Investor one and one-half percent (1.5%) of the net
proceeds received from such Investor in the Offering for no additional cost.
Additionally, for every thirty (30) days (or part hereof) that the Company
continues to be delayed from filing the Registration Statement with the
Commission or continues to fail to use its reasonable best efforts to respond
to
any comments from the Commission, the Company will issue to the Investor 1.5%
(or the pro rata share thereof) of the net proceeds received from the Investor
in the Offering for no additional cost. All additional amounts that may be
issued as provided herein shall not exceed 8% of the net proceeds received
in
the Offering. Such amounts shall be as partial compensation for such failure
and
not as a penalty.
The
provisions of this paragraph 5(f) shall not apply in the event the Company
does
not file as set forth above the Registration Statement because the Company
does
not have available audited financial statements required by the SEC of a company
with which the Company has signed a letter of intent to acquire.
(g) The
Company
will use
its reasonable best efforts to prepare and make publicly available in accordance
with Rule 144(c) such information as is required for the Investor to sell the
Registrable Securities under Rule 144 in the event the Registration Statement
is
unavailable. The Company further covenants that, in the event the Registration
Statement is unavailable, it will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Person to sell such Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144.
(h)
In
the
case of each registration effected by the Company pursuant to any section
herein, the Company will:
(i) Prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the
Securities Act with respect to a disposition of all securities covered by such
registration statement;
(ii) Notify
the Investor at any time when a prospectus relating thereto is required to
be
delivered under the Securities Act, of the happening of any event as a result
of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or incomplete in light of the circumstances then existing, and
at
the request of the shareholders, prepare and furnish to them a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the Investor, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or incomplete in light of the circumstances then
existing; provided that,
for not
more than 120 consecutive business days (or a total of not more than 240
calendar days in any 12-month period), the Company may delay the disclosure
of
material non-public information concerning the Company the public disclosure
of
which at the time is not, in the good faith opinion of the Company in the best
interests of the Company and which may, based on advice of outside counsel,
be
delayed under applicable law or regulation (an “Allowed
Delay”);
provided,
further,
that
the Company shall promptly (a) notify the Investor in writing of the existence
of (but in no event, without the prior written consent of the Investor, shall
the Company disclose to the Investor any of the facts or circumstances
regarding) material non-public information giving rise to an Allowed Delay
and
(b) advise the Investor in writing to cease all sales under such registration
statement until the termination of the Allowed Delay;
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11
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(iii) Use
its
reasonable best efforts to prevent the issuance of any stop order or other
suspension of effectiveness of a registration statement, and, if such an order
is issued, to obtain the withdrawal of such order at the earliest possible
moment and to notify the Investor (and, in the event of an underwritten
offering, the managing underwriter) of the issuance of such order and the
resolution thereof;
(iv) If
NASD
Rule 2710 requires any broker-dealer to make a filing prior to executing a
sale
of Registrable Securities by the Investor, make an Issuer Filing with the NASD
Corporate Financing Department pursuant to NASD Rule 2710 and respond within
five business days to any comments received from NASD in connection
therewith.
(v) Otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission.
(i) To
the
extent the Investor includes any Common Shares or Warrant Shares in a
registration statement pursuant to the terms hereof, the Company will indemnify
and hold harmless the Investor, its directors and officers, and each Person,
if
any, who controls the Investor within the meaning of the Securities Act, from
and against, and will reimburse the Investor, its directors and officers and
each controlling Person with respect to, any and all loss, damage, liability,
cost, and expense to which Investor or such controlling Person may become
subject under the Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs, or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not
misleading; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
so
made in conformity with information furnished by the Investor or any such
controlling Person in writing specifically for use in the preparation
thereof.
(j) To
the
extent the Investor includes any Common Shares or Warrant Shares in a
registration statement pursuant to the terms hereof, the Investor will indemnify
and hold harmless the Company, its directors and officers and any controlling
Person from and against, and will reimburse the Company, its directors and
officers and any controlling Person with respect to, any and all loss, damage,
liability, cost, or expense to which the Company, its directors and officers
or
such controlling Person may become subject under the Securities Act or
otherwise, insofar as such losses, damages, liabilities, costs, or expenses
are
caused by any untrue statement or alleged untrue statement of any material
fact
contained in such registration statement, any prospectus contained therein
or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and
in
conformity with written information furnished by or on behalf of the Investor
specifically for use in the preparation thereof and provided further, that
the
maximum amount that may be recovered from the Investor shall be limited to
the
amount of proceeds received by the Investor from the sale of such shares of
the
Common Stock.
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12
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(k) To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable hereunder to the extent
permitted by law, provided that (i) no contribution shall be made under
circumstances where the indemnifying party would not have been liable for
indemnification pursuant to the provisions hereof, (ii) no seller of securities
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any seller of
securities who was not guilty of such fraudulent misrepresentation, and
(iii) the amount of the contribution together with any other payments made
in respect of such loss, damage, liability, or expense, by any seller of
securities shall be limited to the net amount of proceeds received by such
seller from the sale of such securities.
(l) The
Investor will cooperate with the Company in connection with this Subscription
Agreement, including timely supplying all information and executing and
returning the Selling Securityholder Notice and Questionnaire attached hereto
as
Exhibit
B,
and any
other documents requested by the Company that are required to enable the Company
to perform its obligations to register the Common Shares and Warrant
Shares.
6. Other
Agreements of the Company and the Investor.
(a)
Acknowledgment
of Dilution.
The
Company and Investor acknowledge that the issuance of the Common Shares and
the
Warrant Shares will result in dilution of the outstanding shares of Common
Stock, which dilution may be substantial.
(b)
Exercise
Procedures.
The
form of Notice of Exercise included in the Warrants sets forth the totality
of
the procedures required of the Investor in order to exercise the
Warrants.
(c)
Use
of
Proceeds.
The
Company shall use the net proceeds from the sale of the Units hereunder for
general working capital purposes.
(d) Press
Releases.
The
Company shall issue a press release or file a Current Report on Form 8-K as
required disclosing all material terms of the transactions contemplated hereby
upon the final closing of the offering and in its reasonable discretion. No
description of the Investor or reference to the Investor, other than the
identity of the Investor, may be made in any press release or filing without
the
prior written approval of the Investor.
(e)
Confidentiality.
The
Investor agrees that he, she or it will keep confidential and will not disclose,
divulge or use for any purpose any confidential, proprietary or secret
information which the
Investor may obtain from the Company pursuant to financial statements, reports
and other materials or information submitted by the Company to such Investor
pursuant to this Subscription Agreement or otherwise (but not including the
SEC
Reports) (“Confidential
Information”),
unless such Confidential Information is known, or until such Confidential
Information becomes known, to the public (other than as a result of a breach
of
this section by such Investor); provided,
however,
that
the Investor may disclose Confidential Information (i) to his, her or its
attorneys, accountants, consultants, and other professionals to the extent
necessary to obtain their services in connection with monitoring his, her or
its
investment in the Company,
or (ii)
as may otherwise be required by law, provided that the Investor takes reasonable
steps to minimize the extent of any such required disclosure and promptly
notifies the Company when it becomes aware of such legal requirement
.
7. Miscellaneous.
(a) Termination.
The
Investor agrees that he shall not cancel, terminate, or revoke this Subscription
Agreement or any agreement of the Investor made hereunder other than as set
forth herein, and that this Subscription Agreement shall survive the death
or
disability of the Investor. If the Company elects to cancel this Subscription
Agreement, provided that it returns to the Investor, without interest and
without deduction, all sums paid by the Investor, this Offer shall be null
and
void and of no further force and effect, and no party shall have any rights
against any other party hereunder.
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13
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(b)Entire
Agreement.
This
Subscription Agreement, together with the exhibits hereto, contains the entire
understanding of the Company and the Investor with respect to the subject matter
hereof.
(c) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the second Business Day following the date of mailing,
if
sent by U.S. nationally recognized overnight courier service, or (b) upon actual
receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be to the
Investor at his address set forth on the Investor Signature Page, and to the
Company at the addresses set forth in the SEC Reports.
(d) Amendments;
Waivers.
No
provision of this Subscription Agreement may be waived or amended except in
a
written instrument signed, in the case of an amendment, or in the case of a
waiver, by the Company and the individual Investor. No waiver of any default
with respect to any provision, condition or requirement of this Subscription
Agreement shall be deemed to be a continuing waiver in the future or a waiver
of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right.
(e)
Construction.
The
headings herein are for convenience only, do not constitute a part of this
Subscription Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
(f)
Successors
and Assigns.
This
Subscription Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. The Company may not assign
this Subscription Agreement or any rights or obligations hereunder without
the
prior written consent of each Investor in the Offering. The Investor may assign
any or all of its rights under this Subscription Agreement to any Person to
whom
the Investor assigns or transfers any of the Common Shares or Warrant
Shares.
(g)
No
Third-Party Beneficiaries.
This
Subscription Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns and is not for the benefit
of,
nor may any provision hereof be enforced by, any other Person.
(h)
Governing
Law.
All
questions concerning the construction, validity, enforcement, and interpretation
of this Subscription Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of Delaware, without regard
to
the principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Subscription Agreement (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, employees, or agents) shall be commenced exclusively in the state
and federal courts sitting in the State of Delaware. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of Wilmington, Delaware for the adjudication of
any
dispute hereunder or in connection herewith 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 improper or inconvenient venue for such proceeding. 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
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Subscription 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. The parties hereby waive all rights to a trial by jury. If either party
shall commence an action or proceeding to enforce any provisions of this
Subscription Agreement, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its attorneys’ fees and other costs
and expenses incurred with the investigation, preparation, and prosecution
of
such action or proceeding.
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14
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(i)
Survival.
The
representations and warranties contained herein shall survive the closing of
the
transaction hereunder.
(j)
Execution.
In the
event that any signature is delivered by facsimile transmission, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile signature page were an original thereof. This Subscription Agreement
may be executed in two or more counterparts each of which shall be deemed an
original, but all of which shall together constitute one and the same
instrument.
(k)
Severability.
If any
provision of this Subscription Agreement is held to be invalid or unenforceable
in any respect, the validity and enforceability of the remaining terms and
provisions of this Subscription Agreement shall not in any way be affected
or
impaired thereby and the parties will attempt to agree upon a valid and
enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Subscription
Agreement.
(l)
Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of Investor and the Company will be
entitled to specific performance under this Subscription Agreement. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance
of
any such obligation the defense that a remedy at law would be
adequate.
(m) Fees
and Expenses.
Except
as provided in writing, the parties hereto shall be responsible for their own
legal and other expenses, if any, in connection with this transaction.
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15
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INVESTOR
SIGNATURE PAGE FOR NEOSTEM, INC. SUBSCRIPTION AGREEMENT
Please
print or type, Use ink only. (All Parties Must Sign)
The
undersigned Investor hereby certifies that he (i) has received and relied solely
upon the SEC Reports, this Subscription Agreement and their respective exhibits
and schedules, (ii) agrees
to
all the terms and conditions of this Subscription Agreement, (iii) meets the
suitability standards set forth herein and (iv) is a resident of the state
or
foreign jurisdiction indicated below.
| Dollar Amount of Units Subscribed for: $_______________ | ||
|
If
other than individual check one and
|
||
|
Name
of Investor (Print)
|
indicate
capacity of signatory under the
|
|
|
signature:
|
||
|
|
Trust
|
|
|
Name
of Joint Investor (if any) (Print)
|
Estate
|
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|
Uniform
Gifts to Minors Act
|
||
|
|
State
of ________________
|
|
|
Signature
of Investor
|
Attorney-in-fact
|
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|
Corporation
|
||
|
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Other
|
|
|
Signature
of Joint Investor (if any)
|
||
|
If
Joint Ownership, Check one:
|
||
|
|
Joint
Tenants with Right of
|
|
|
Capacity
of Signatory (if applicable)
|
Survivorship
|
|
|
Tenants
in Common
|
||
|
|
Tenants
by the Entirety
|
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|
Social
Security or Taxpayer Identification Number
|
Community
Property
|
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|
Investor
Address:
|
Backup
Withholding Statement:
|
|
|
Please
check this box only if the
|
||
|
|
investor
is subject to backup
|
|
|
Street
Address
|
withholding
|
|
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||
|
|
Foreign
Person:
|
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|
City State
Zip Code
|
Please
check this box only if the
|
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|
investor
is a nonresident alien, foreign
|
||
|
Telephone:
( )
|
foreign
partnership, foreign trust,
|
|
|
corporation,
or foreign estate
|
||
|
Fax:
( )
|
Country
____________________
|
|
|
Passport
# __________________
|
||
|
ID
# _______________________
|
||
|
E-mail:
|
ID
Type ____________________
|
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|
Address
for Delivery of Units (if different from above):
|
||
|
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||
|
City State
Zip Code
|
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THE
SUBSCRIPTION FOR UNITS OF NEOSTEM, INC. BY THE ABOVE NAMED INVESTOR(S) IS
ACCEPTED THIS ________ DAY OF ____________, 2008.
|
By:
|
||
|
Name:
|
Xxxxx
X. Xxxxx
|
|
|
Title:
|
Chairman
and CEO
|
|
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17
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Schedule
A
U.S.
Person
A
"U.S.
person" means:
|
i.
|
|
Any
natural person resident in the United
States;
|
|
Any
partnership or corporation organized or incorporated under the laws
of the
United States;
|
|
Any
estate of which any executor or administrator is a U.S.
person;
|
|
Any
trust of which any trustee is a U.S.
person;
|
|
Any
agency or branch of a foreign entity located in the United
States;
|
|
Any
non-discretionary account or similar account (other than an estate
or
trust) held by a dealer or other fiduciary for the benefit or account
of a
U.S. person;
|
|
Any
discretionary account or similar account (other than an estate or
trust)
held by a dealer or other fiduciary organized, incorporated, or (if
an
individual) resident in the United States;
and
|
|
Any
partnership or corporation if:
|
|
Organized
or incorporated under the laws of any foreign jurisdiction;
and
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|
Formed
by a U.S. person principally for the purpose of investing in securities
not registered under the Act, unless it is organized or incorporated,
and
owned, by accredited investors (as defined in Rule
501(a))
who are not natural persons, estates or
trusts.
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18
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Schedule
B
Non-U.S.
Person
The
following are not "U.S. persons":
|
Any
discretionary account or similar account (other than an estate or
trust)
held for the benefit or account of a non-U.S. person by a dealer
or other
professional fiduciary organized, incorporated, or (if an individual)
resident in the United States;
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|
Any
estate of which any professional fiduciary acting as executor or
administrator is a U.S. person if:
|
|
An
executor or administrator of the estate who is not a U.S. person
has sole
or shared investment discretion with respect to the assets of the
estate;
and
|
|
The
estate is governed by foreign law;
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|
Any
trust of which any professional fiduciary acting as trustee is a
U.S.
person, if a trustee who is not a U.S. person has sole or shared
investment discretion with respect to the trust assets, and no beneficiary
of the trust (and no settlor if the trust is revocable) is a U.S.
person;
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|
An
employee benefit plan established and administered in accordance
with the
law of a country other than the United States and customary practices
and
documentation of such country;
|
|
Any
agency or branch of a U.S. person located outside the United States
if:
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|
The
agency or branch operates for valid business reasons;
and
|
|
The
agency or branch is engaged in the business of insurance or banking
and is
subject to substantive insurance or banking regulation, respectively,
in
the jurisdiction where located; and
|
|
The
International Monetary Fund, the International Bank for Reconstruction
and
Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and pension
plans.
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19
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