UNDERWRITER WARRANT CLARIFICATION AGREEMENT
This
Underwriter Warrant Clarification Agreement (this “Agreement”), dated as of
______ ____, 2008, to the Underwriter Warrants issued as of August 14, 2007
(the
“Underwriter Warrants”) is made and entered into by and between NeoStem, Inc., a
Delaware corporation with offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (“Company”) and the holders of Underwriter Warrant numbers XX-0, XX-0,
XX-0, XX-0, and UW-5, being all of the holders of the Underwriter Warrants
issued in connection with the Company’s August 2007 public offering (each, a
“Holder”), with each
Holder acting with respect to the Underwriter Warrant issued to it.
WHEREAS,
the
Underwriter Warrants do not contain any provisions granting registered holders
of Underwriter Warrants the right to receive any cash or other consideration
or
otherwise “net cash settle” the Underwriter Warrants in the event securities
cannot be issued upon exercise of the Underwriter Warrants because a
registration statement is not effective.
WHEREAS,
as a
result of certain questions that have arisen regarding the accounting treatment
applicable to the Underwriter Warrants, the parties hereto deem it necessary
and
desirable to amend the Underwriter Warrants to clarify and confirm that the
registered holders do not have the right to receive a net cash settlement in
the
event the Company does not maintain a current prospectus relating to the common
stock issuable upon exercise of the Underwriter Warrants at the time such
Underwriter Warrants are exercisable.
NOW,
THEREFORE,
in
consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree
to amend the Underwriter Warrants as set forth herein (each Holder acting with
respect to the Underwriter Warrant issued to it).
1. Underwriter
Warrants:
Each
Underwriter Warrant is hereby amended by adding the following sentence as the
penultimate sentence of Section 2.3.3:
‘‘Furthermore,
if the Company is unable to deliver any securities pursuant to the exercise
of
an Underwriter Warrant as a result of the foregoing situation, the Company
will
have no obligation to pay such registered holder any cash or other consideration
or otherwise ‘‘net cash-settle’’ the Underwriter Warrant.’’
000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 212.584.4180 main 000.000.0000
fax
2. Miscellaneous.
(a) Governing
Law.
The
validity, interpretation, and performance of this Agreement and of the
Underwriter Warrants shall be governed in all respects by the laws of the State
of New York, without giving effect to conflicts of law principles that would
result in the application of the substantive laws of another jurisdiction.
The
Company hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New York or the United States District Court for
the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
7.3 of the Underwriter Warrants. Such mailing shall be deemed personal service
and shall be legal and binding upon the Company in any action, proceeding or
claim.
(b) Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective successors and assigns.
(c) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
Except as set forth in this Agreement, provisions of the Underwriter Warrants
which are not inconsistent with this Agreement shall remain in full force and
effect. This Agreement may be executed in counterparts.
(d) Severability.
This Agreement shall be deemed severable, and the invalidity or unenforceability
of any term or provision hereof shall not affect the validity or enforceability
of this Agreement or of any other term or provision hereof. Furthermore, in
lieu
of any such invalid or unenforceable term or provision, the parties hereto
intend that there shall be added as part of this Agreement a provision as
similar in terms to such invalid or unenforceable provision as may be possible
and be valid and enforceable.
IN
WITNESS WHEREOF, the parties hereto have executed this Underwriter Warrant
Clarification Agreement as of the date first written above.
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By:
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Xxxxx
X. Xxxxx, Chief Executive Officer
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Holder
of UW-1:
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By:
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Holder
of UW-2:
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By:
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Holder
of UW-3
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By:
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Holder
of UW-4:
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By:
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Holder
of UW-5:
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By:
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