Unassociated Document


    
       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:

     

    
      	
               
      

            	
              (a)

            	
              “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.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              “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.

            


    

     

    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:

     

    
      	
               
      

            	
              (a)

            	
              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.

            


    

     

    
      	
               
      

            	
              (b)

            	
              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.

            


    

     

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (c)

            	
              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.

            


    

     

    
      	
               
      

            	
              (d)

            	
              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.

            


    

     

    
      	
               
      

            	
              (e)

            	
              No
      Solicitation.  Such Stockholder agrees not to take any
      action inconsistent with or in violation of the merger
      agreement.

            


    

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (f)

            	
              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, sell,
      transfer, tender, pledge, encumber, assign or otherwise dispose of, or
      enter into any contract, option or other arrangement or understanding with
      respect to or consent to the offer for sale, sale, transfer, tender,
      pledge, encumbrance, assignment or other disposition of, any or all of any
      such Stockholder’s Shares, or any interest therein, whether such shares
      are held by such Stockholder as of the date hereof or are acquired by such
      Stockholder from and after the date hereof, whether in connection with the
      merger or otherwise (together with the Shares, the “Lock-Up
      Shares”), (ii) except as contemplated by this Voting Agreement,
      grant any proxies or powers of attorney, deposit any Shares into a voting
      trust or enter into a voting agreement with respect to the Lock-Up Shares,
      or (iii) take any action that would make any representation or warranty of
      such Stockholder contained herein untrue or incorrect or have the effect
      of preventing or disabling such Stockholder from performing such
      Stockholder’s obligations under this Voting
  Agreement.

            


    

     

    
      	
               
      

            	
              (g)

            	
              Reliance by the
      Company.  Such Stockholder understands and acknowledges
      that the Company is entering into the merger agreement in reliance upon
      such Stockholder’s execution and delivery of this Voting
      Agreement.

            


    

     

    
      	
               
      

            	
              (h)

            	
              Permitted
      Transfer.  Notwithstanding the foregoing or any other
      provision of this Agreement to the contrary, any Stockholder may sell or
      transfer any Shares to any Stockholder or any other Person who executes
      and delivers to the Company an agreement, in form and substance acceptable
      to the Company, to be bound by the terms of this Agreement to the same
      extent as the transferring Stockholder (any such transfer, a “Permitted
      Transfer”).

            


    

     

    5.           Stop Transfer
Legend.

     

    
      	
               
      

            	
              (a)

            	
              Each
      of the Stockholders agrees and covenants to the Company that such
      Stockholder shall not request that the Parent register the transfer
      (book-entry or otherwise) of any certificate or uncertificated interest
      representing any of such Stockholder’s Shares, unless such transfer is
      made in compliance with this Voting
Agreement.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Without
      limiting the covenants set forth in paragraph (a) above, in the event of a
      stock dividend or distribution, or any change in Shares by reason of any
      stock dividend, split-up, recapitalization, combination, exchange of
      shares or the like, other than pursuant to the merger, the term “Shares”
      shall be deemed to refer to and include any and all shares into which or
      for which any or all of the Shares may be changed or exchanged, and
      appropriate adjustments shall be made to the terms and provisions of this
      Voting Agreement.

            


    

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

     

    6.           Further
Assurances.  From time to time until the expiration of the
Lock-Up Period, at the Company’s request and without further consideration, each
Stockholder shall execute and deliver such additional documents and take all
such further lawful action as may be necessary or desirable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Voting Agreement.

     

    7.           Stockholder
Capacity.  If any Stockholder is or becomes during the term
hereof a director or an officer of the Parent, such Stockholder makes no
agreement or understanding herein in his capacity as such director or
officer.  Each of the Stockholders signs solely in his or her capacity
as the record and Beneficial Owner of the Stockholder’s Shares.

     

    8.           Termination.  Except
as otherwise provided herein, the covenants and agreements contained herein with
respect to the Shares shall terminate upon the earlier of (a) the Termination
Date regardless of the circumstances or (b) the expiration of the Lock-Up
Period.

     

    9.           Miscellaneous.

     

    
      	
               
      

            	
              (a)

            	
              Entire
      Agreement.  This Voting Agreement constitutes the entire
      agreement among the parties with respect to the subject matter hereof and
      supersedes all other prior agreements and understandings, both written and
      oral, between the parties with respect to the subject matter
      hereof.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Certain
      Events.  Subject to Sections 4(f) and (g) hereof, each of
      the Stockholders agrees that this Voting Agreement and the obligations
      hereunder shall attach to each such Stockholder’s Shares and shall be
      binding upon any Person to which legal or Beneficial Ownership of such
      Shares shall pass, whether by operation of law or otherwise, including
      without limitation, each Stockholder’s heirs, guardians, administrators or
      successors.  Notwithstanding any such transfer of Shares, the
      transferor shall remain liable for the performance of all obligations
      under this Voting Agreement.

            


    

     

    
      	
               
      

            	
              (c)

            	
              Assignment.  This
      Voting Agreement shall not be assigned by operation of law or otherwise
      without the prior written consent of the Company in the case of an
      assignment by any Stockholder and each Stockholder in the case of any
      assignment by the Company; provided that the Company may assign, in its
      sole discretion, its rights and obligations hereunder to any direct or
      indirect wholly owned subsidiary of the Company, but no such assignment
      shall relieve the Company of its obligations hereunder if such assignee
      does not perform such obligations.

            


    

     

    
      	
               
      

            	
              (d)

            	
              Amendment and
      Modification.  This Voting Agreement may not be amended,
      changed, supplemented, waived or otherwise modified or terminated, except
      upon the execution and delivery of a written agreement executed by the
      parties hereto affected by such
amendment.

            


    

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (e)

            	
              Notices.  Any
      notice or other communication required or which may be given hereunder
      shall be in writing and delivered (i) personally, (ii) via telecopy, (iii)
      via overnight courier (providing proof of delivery) or (iv) via registered
      or certified mail (return receipt requested). Such notice shall be deemed
      to be given, dated and received (i) when so delivered personally, via
      telecopy upon confirmation, or via overnight courier upon actual delivery
      or (ii) two days after the date of mailing, if mailed by registered or
      certified mail. Any notice pursuant to this section shall be delivered as
      follows:

            


    

     

    If to the
Stockholder, to the address set forth for the Stockholder on Schedule A to this
Voting Agreement.

    


    If to
Parent:

    


    NeoStem,
Inc.

    420
Lexington Avenue

    Suite
450

    New York,
New York 10170

    Attn:                      Catherine Vaczy,
Esq.

    Facsimile:
(646) 514-7787

    with
copies to:

    


    Lowenstein Sandler,
PC

    65 Livingston Avenue

    Roseland,
NJ  07078

    Attention:  Alan Wovsaniker,
Esq.

    Fax:  973-597-2565

    


    If to the
Company:

    


    China
Biopharmaceuticals, Inc.

    No. 859,
Pan Xu Road

    Suzhou,
Jiangsu Province, China, 215000

    Attention:
Chris Mao

    Telecopy:
_______________

    


    with a
copy (which shall not constitute notice) to:

    


    Troutman
Sanders LLP

    The
Chrysler Building

    405
Lexington Avenue

    New York,
New York  10174

    Attention:  Howard
H. Jiang, Esq.

    Telecopy:  (212)
704-6288

     

    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

    


    
      	
               
      

            	
              (f)

            	
              Severability.  Whenever
      possible, each provision or portion of any provision of this Voting
      Agreement will be interpreted in such a manner as to be effective and
      valid under applicable law but if any provision or portion of any
      provision of this Voting Agreement is held to be invalid, illegal or
      unenforceable in any respect under any applicable law or rule in any
      jurisdiction, such invalidity, illegality or unenforceability will not
      affect any other provision or portion of any provision of this Voting
      Agreement in such jurisdiction, and this Voting Agreement will be
      reformed, construed and enforced in such jurisdiction as if such invalid,
      illegal or unenforceable provision or portion of any provision had never
      been contained herein.

            


    

     

    
      	
               
      

            	
              (g)

            	
              Specific
      Performance.  Each of the parties hereto agrees,
      recognizes and acknowledges that a breach by it of any covenants or
      agreements contained in this Voting Agreement will cause the other parties
      to sustain damages for which they would not have an adequate remedy at law
      for money damages, and therefore each of the parties hereto agrees that in
      the event of any such breach any aggrieved party shall be entitled to the
      remedy of specific performance of such covenants and agreements (without
      any requirement to post bond or other security and without having to prove
      actual damages) and injunctive and other equitable relief in addition to
      any other remedy to which it may be entitled, at law or in
      equity.

            


    

     

    
      	
               
      

            	
              (h)

            	
              Remedies
      Cumulative.  All rights, powers and remedies provided
      under this Voting Agreement or otherwise available in respect hereof at
      law or in equity shall be cumulative and not alternative, and the exercise
      of any such rights, powers or remedies by any party shall not preclude the
      simultaneous or later exercise of any other such right, power or remedy by
      such party.

            


    

     

    
      	
               
      

            	
              (i)

            	
              No
      Waiver.  The failure of any party hereto to exercise any
      right, power or remedy provided under this Voting Agreement or otherwise
      available in respect hereof at law or in equity, or to insist upon
      compliance by any other party hereto with its obligations hereunder, and
      any custom or practice of the parties at variance with the terms hereof,
      will not constitute a waiver by such party of its right to exercise any
      such or other right, power or remedy or to demand such
      compliance.

            


    

     

    
      	
               
      

            	
              (j)

            	
              No Third Party
      Beneficiaries.  This Voting Agreement is not intended to
      confer upon any person other than the parties hereto any rights or
      remedies hereunder.

            


    

     

    
      	
               
      

            	
              (k)

            	
              Governing
      Law.  This Voting Agreement will be governed and
      construed in accordance with the laws of the State of Delaware, without
      giving effect to the principles of conflict of laws
    thereof.

            


    

     

    
      	
               
      

            	
              (l)

            	
              Submission to
      Jurisdiction.  Each party to this Voting Agreement
      irrevocably consents and agrees that any legal action or proceeding with
      respect to this Agreement and any action for enforcement of any judgment
      in respect thereof will be brought in the state or federal courts located
      within the jurisdiction of the United States District Court for the
      Southern District of New York, and, by execution and delivery of this
      Voting Agreement, each party to this Voting Agreement hereby irrevocably
      submits to and accepts for itself and in respect of its property,
      generally and unconditionally, the exclusive jurisdiction of the aforesaid
      courts and appellate courts from any appeal thereof.  Each party
      to this Voting Agreement further irrevocably consents to the service of
      process out of any of the aforementioned courts in any such action or
      proceeding by the mailing of copies thereof in the manner set forth in
      Section 9(e).  Each party to this Voting Agreement hereby
      irrevocably waives any objection which it may now or hereafter have to the
      laying of venue of any of the aforesaid actions or proceedings arising out
      of or in connection with this Voting Agreement brought in the courts
      referred to above and hereby further irrevocably waives and agrees not to
      plead or claim in any such court that any such action or proceeding
      brought in any such court has been brought in an inconvenient
      forum.  Nothing in this Section 9(l) shall be deemed to
      constitute a submission to jurisdiction, consent or waiver with respect to
      any matter not specifically referred to
herein.

            


    

     

    
      
        
        

      

      
        -7-

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (m)

            	
              WAIVER
      OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY
      JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING IN CONNECTION WITH
      THIS VOTING AGREEMENT.

            


    

     

    
      	
               
      

            	
              (n)

            	
              Description
      Headings.  The description headings used herein are for
      convenience of reference only and are not intended to be part of or to
      affect the meaning or interpretation of this Voting
    Agreement.

            


    

     

    
      	
               
      

            	
              (o)

            	
              Counterparts.  This
      Voting Agreement may be executed in counterparts, each of which will be
      considered one and the same Voting Agreement and will become effective
      when such counterparts have been signed by each of the parties and
      delivered to the other parties, it being understood that all parties need
      not sign the same counterpart.

            


    

     

    
      	
               
      

            	
              (p)

            	
              No
      Survival.  No representations, warranties and covenants
      of the Stockholder in this Agreement shall survive the
      merger.  The Stockholder shall have no liability hereunder
      except for any willful and material breach of this Agreement by the
      Stockholder.

            


    

     

    
      	
               
      

            	
              (q)

            	
              Action in Stockholder Capacity
      Only.  The parties acknowledge that this Agreement is
      entered into by each Stockholder solely in such Stockholder’s capacity as
      the beneficial owner of such Stockholder’s Shares and, notwithstanding
      anything herein to the contrary, nothing in this Agreement in any way
      restricts or limits any action taken by such Stockholder or any designee
      or related party of such Stockholder in his or her capacity as a director
      or officer of the Company and the taking of any actions in his or her
      capacity as an officer or director of the Company will not be deemed to
      constitute a breach of this Agreement, regardless of the circumstances
      related thereto.

            


    

     

    


    


    [SIGNATURE
PAGE FOLLOWS]

     

    
      
        
        

      

      
        -8-

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, Parent and each of the Stockholders have caused this Voting
Agreement to be duly executed as of the day and year first above
written.

     

    
      
        
          
            	 	NEOSTEM, INC.	 
	 	 	 	 
	
                     

                  	
                    By:
      

                  	  
      	 
	 	Name  
      	  
      	 
	 	 Title 	   	 
	 	 	 	 


          

        

      

    

    
       

      
        
          
            
              	 	CHINA BIOPHARMACEUTICALS
      HOLDINGS, INC.	 
	 	 	 	 
	
                       

                    	
                      By:
      

                    	  
      	 
	 	Name  
      	  
      	 
	 	 Title 	   	 
	 


            

             

          

        

      

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	 	 	 
	
                                   

                                	
                                    
      

                                	    
      	 
	 	Richard
      Berman	 
	 	Director	 
	 


                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  	 	 	 
	
                           

                        	
                           
      

                        	 
      	 
	 	Steven
      Myers	 
	 	Director	 


                

              

            

          

        

      

       

      
        
          
            
              
                
                  	 	 	 
	
                           

                        	
                            
      

                        	  
      	 
	 	Dr.
      Joseph Zuckerman	 
	 	Director	 


                

              

            

          

        

      

    

    
       

      
        
          
            
              
                
                  
                    	 	 	 
	
                             

                          	
                              
      

                          	  
      	 
	 	Larry
      A. May	 
	 	Vice
      President and Chief Financial Officer	 


                  

                

              

            

          

        

      

      
         

        
          
            
              
                
                  
                    
                      	 	 	 
	
                               

                            	
                                
      

                            	  
      	 
	 	Catherine M.
    Vaczy	 
	 	Vice President and
      General Counsel	 


                    

                  

                

              

            

          

        

        
          
             

            
              
                
                

              

              
                -9-

                
                  

                

              

              
                
                

              

            

             

            
              
                
                  
                    
                      
                        
                          	 	 	 
	
                                   

                                	
                                    
      

                                	  
      	 
	 	Mark
      Weinreb	 
	 	President
      and Director	 


                        

                      

                    

                  

                

              

              
                 

                
                  
                    
                      
                        
                          
                            
                              	 	 	 
	
                                       

                                    	
                                        
      

                                    	  
      	 
	 	Dr. Robin L.
      Smith	 
	 	Chief Executive Officer
      and Chairman of the Board	 


                            

                          

                        

                      

                    

                  

                

                 

              

            

          

        

      

    

     

    
      
        
        

      

      
        -10-