UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported): August 27,
2009
NEOSTEM,
INC.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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0-10909
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22-2343568
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File
Number)
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(IRS
Employer Identification No.)
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420 Lexington Avenue, Suite
450, New York, New York 10170
(Address
of Principal Executive Offices)(Zip Code)
(212)
584-4180
Registrant's
Telephone Number
Check
the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2.
below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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As of
August 27, 2009, NeoStem, Inc. (the “Company”), China Biopharmaceuticals
Holdings, Inc. (“CBH”), China Biopharmaceuticals Corp., CBH’s wholly-owned
subsidiary (“CBC”), and CBH Acquisition LLC, a wholly-owned subsidiary of the
Company (“Subco”), entered into Amendment No. 2 to that certain Agreement and
Plan of Merger, dated November 2, 2008, as amended by Amendment No. 1, dated as
of July 1, 2009 (as amended, the “Agreement and Plan of
Merger”). Capitalized terms used herein and not defined shall have
the meanings given those terms in the Agreement and Plan of
Merger. Pursuant to the terms of Amendment No. 2 to the Agreement and
Plan of Merger:
· The
Exchange Ratio was amended to equal the quotient of 7,150,000 shares divided by
the sum of (x) the number of shares of CBH stock outstanding as of the Effective
Time and (y) the number of shares of CBH common stock issuable upon exercise of
in-the-money warrants of CBH immediately prior to the Effective Time, subject to
adjustment as set forth in the Agreement and Plan of Merger. As of
the date of Amendment No. 2, the Exchange Ratio was 0.1921665.
· The
exchange offer with respect to the outstanding CBH Common Stock Purchase
Warrants was eliminated. Accordingly, Preliminary Statement E(3) and
Exhibit B, the closing condition set forth in Section 6.2.20 of the Agreement
and Plan of Merger, and all references to the Series C Warrants therein, were
deleted. Section 2.4 of the Agreement and Plan of Merger was amended
to provide that at the Effective Time, each holder of a CBH Common Stock
Purchase Warrant (other than RimAsia) would receive, in aggregate, in exchange
for his or her CBH Common Stock Purchase Warrants the rights under those CBH
Common Stock Purchase Warrants.
· The
Agreement and Plan of Merger contemplates that as a condition of Closing,
certain approvals from PRC regulatory authorities shall have been obtained prior
to Closing, including approvals with respect to the Merger, and the terms of the
Amended and Restated Erye Joint Venture Agreement, the Erye Articles of
Incorporation and related organizational documents. It also
contemplates certain assurances from PRC Governmental Authorities. In Amendment
No. 2, CBH agreed to cause Erye to use reasonable commercial efforts to obtain
such approvals prior to the Closing. Contrary to Amendment No. 1, however, the
parties will not enter into an escrow agreement, and there will be no provision
such that the consideration to be paid or issued by NeoStem in connection with
the Merger is held in escrow, subject to a right of NeoStem to receive back all
such consideration and rescind the Merger if any such PRC regulatory approvals
are not obtained. Any references to a possible escrow arrangement were deleted.
Mr. Shi and Madame Jian shall use reasonable efforts to expedite the receipt of
all PRC approvals and shall be paid an aggregate of 203,338 shares of NeoStem
Common Stock when all PRC approvals are received (for clarification this
replaced the provision previously included in Amendment No. 1).
The full text of Amendment No. 2 to the
Agreement and Plan of Merger is incorporated herein as Exhibit 10.1 and the
above description is qualified in its entirety by reference to such Amendment
No. 2.
Additional
Information about the Merger and Where to Find It
NeoStem
recently filed a Proxy Statement/Registration Statement with the SEC with
respect to the shares of NeoStem Common Stock to be issued in connection with
the Merger. Investors and security holders are advised to read the
Proxy Statement/Registration Statement because it contains important information
about NeoStem, CBH, the proposed Merger and other related
matters. The final Proxy Statement/Registration Statement will be
sent to stockholders of NeoStem seeking their approval of the proposed
transaction. Investors and security holders will be able to obtain
the documents free of charge at the SEC’s web site,
http://www.sec.gov. Since such final documents are not currently
available, NeoStem’s stockholders will receive information at an appropriate
time as to how to obtain transaction-related documents free of charge from
NeoStem.
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This
Current Report on Form 8-K may be deemed to be solicitation material in respect
of the proposed Merger. The directors and executive officers of each
of NeoStem and CBH may be deemed to be participants in the solicitation of
proxies from the holders of NeoStem Common Stock in respect of the proposed
transaction. Information about the directors and executive officers
of NeoStem is set forth in NeoStem’s Proxy Statement for its 2009 Annual Meeting
of Stockholders filed with the SEC on April 14, 2009 and in subsequent Forms
8-K. Investors may obtain additional information regarding the
interest of NeoStem and its directors and executive officers, and CBH and its
directors and executive officers in connection with the proposed Merger, by
reading the Proxy Statement/Registration Statement as filed with the
SEC.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit
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Description
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Reference
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10.1
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Amendment
No. 2 to Agreement and Plan of Merger, made and entered into as of the
27th
day of August, 2009, by and among NeoStem, Inc., CBH Acquisition LLC,
China Biopharmaceuticals Holdings, Inc., and China Biopharmaceuticals
Corp.(*)
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Annex
A
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(*) Filed
with the Securities and Exchange Commission as an exhibit, numbered as indicated
above, to the Company’s Pre-Effective Amendment No. 2 to Registration Statement
on Form S-4/A, File No. 333-160578, which exhibit is incorporated here by
reference.
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SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, NeoStem has duly caused this Report to be
signed on its behalf by the undersigned hereunto duly authorized.
| NEOSTEM, INC. | |||
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By:
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/s/ Catherine M. Vaczy | |
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Name: Catherine
M. Vaczy
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Title: Vice
President and General Counsel
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Date: September
2, 2009
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