CARDIOVASCULAR BIOTHERAPEUTICS, INC. SUBSCRIPTION AGREEMENT
Exhibit
10.40
1.
Subscriptions: Acceptance,
The
undersigned (the “Subscriber”) hereby irrevocably subscribes for ____________
shares of Common Stock (the “Common Stock”) of CardioVascular BioTherapeutics,
Inc., a Delaware corporation (the “Company”), at a price of US $_____ per share
for a total of $_________, which subscription, when and if accepted (in whole
or
in part) by the Company, will constitute the payment by the Subscriber of
the
purchase price for the Common Stock, as described below. This Subscription
Agreement is accompanied by cash or a check in the Subscribed Amount payable
to
CardioVascular BioTherapeutics, Inc. Acceptance of this subscription is subject
to verification of the Subscriber’s representations and warranties contained
▇▇▇▇▇ and such other factors as the Company shall determine; and the
subscription and payment for the Common Stock may be accepted or rejected,
in
whole or in part, at the sole discretion of the Company. The undersigned
agrees
to purchase from the Company the Common Stock in the Subscribed Amount on
the
terms and conditions set forth herein. Upon acceptance of this subscription
by
the Company, the Company will issue the certificates representing the Common
Stock in the name of the Subscriber dated the date of acceptance by the Company,
in the amount of the portion of the subscription accepted by the Company
will
issue to a check payable to the Subscriber in the amount of the difference
between the Subscribed Amount and the Issued Amount. If the Company declines
to
accept this subscription, it will forthwith return such payment to the
undersigned without interest.
2. The
Offering
This
subscription is pursuant to an offering not involving any United States persons
pursuant to Regulation S (“Regulation S”) under the United States Securities Act
of 1933, as amended (the “Act”), of up to -----___________ shares of Common
Stock of the Company. The parties agree that (i) the Issued Amount of this
subscription shall be available for use by the Company when the Company has
sold
any amount of the Common Stock, (ii) there is no assurance that all __________
shares of Common Stocks will be sold, (iii) the Company has the right, in
its
sole discretion, to terminate the offering at any time and (iv) the Company,
in
its sole discretion, has the right to extend the offering beyond the __________
shares of Common Stock and to raise additional capital in future
offerings.
3. Representations,
Warranties and Agreements of the Subscriber.
The
Subscriber hereby represents warrants and agrees as follows:
(a)
Subscriber acknowledges that it has been provided with and has carefully
read a
document entitled “Terms of the Offering”. This document contains a description
of the offering of the Common Stock, the use of proceeds from the sale of
the
Common Stock and links (with instructions on how to open them) to public
documents filed by the Company with the United States Securities and Exchange
Commission. Subscriber and its representatives have has the opportunity to
meet
with representatives of the Company and have had the opportunity to ask
questions of and receive answers from, representatives of the Company concerning
the Company; and the terms and conditions of this transaction as well as
to
obtain any information requested by Subscriber. Subscriber believes that
any
questions raised by Subscriber or its representatives have been answered
to the
satisfaction of Subscriber and its representatives. Subscriber’s decision to
purchase the Common Stock is based in part on the answers to such questions
as
Subscriber and its representatives have raised concerning the transaction
and is
based in part on its own evaluation of the risks and merits of the purchase
and
the Company’s proposed business activities. Subscriber understands:
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(i)
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The
risks involved in this offering, including the speculative nature
of the
investment;
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(ii)
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The
lack of liquidity and restrictions on transfer of the Common Stocks
and;
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(iii)
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The financial hazards involved in this offering, including the risk of losing Subscriber’s entire investment. |
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(b)
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Subscriber
acknowledges that it has prior investment experience, including
investment
in non-registered securities; that is recognizes the highly speculative
nature of this investment and is able to bear the economic risk
and is
able to fend for itself; and that is has been advised by or have
had an
opportunity to employ the services of an investment adviser, attorney
or
accountant who is qualified by training and experience in business
and
financial matters to evaluate the merits and risks of such an investment
and who has had the opportunity to review the Terms of the Offering
and
the Company’s publicly filed documents, links to which are provided in the
Terms of the Offering.
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(c)
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Subscriber
represents that it and its investment advisor, attorney or accountant,
if
any, have been furnished by the Company, during the course of this
transaction, with all information regarding the Company which such
parties
have requested or desire to know; that all documents which could
be
reasonably provided have been made available for the inspection
and review
of such parties; and that such parties have been afforded the opportunity
to ask questions and receive answers from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-President
and Chief Executive Officer of the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.,
Co-President and Chief Medical Officer of the Company and other
officers
and directors of the Company, concerning the terms and conditions
of the
offering; and any additional information such parties
requested.
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(d)
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Subscriber
acknowledges that there is a present public market for shares of
the
Company’s common stock, although transfer of the Common Stock purchased
in
this offering will be restricted. As a result, (i) Subscriber may
not be
able to liquidate its investment in the event of emergency, (ii)
transferability is extremely limited and (iii) in the event of
a
disposition Subscriber could sustain a
loss.
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(e)
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The
Common Stock is being purchased by Subscriber and not by any other
person
(whether or not a “U.S. Person” as that term is defined under Regulation
S), with the Subscriber’s own funds and not with the funds of any other
person and for the account of Subscriber, not as a nominee or agent
and
not for the account of any other person. On acceptance of this
Subscription Agreement by the Company, no other person will have
any
interest, beneficial or otherwise, in the Common Stock. Subscriber
is not
obligated to transfer the Common Stock to any other person nor
does
Subscriber have any agreement or understanding to do so. Subscriber
does
not intend to subdivide Subscriber’s purchase of the Common Stock with any
person.
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(f)
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Subscriber
is not purchasing the Common Stock for distribution or resale to
others.
Subscriber agrees that it will not sell or otherwise transfer the
Common
Stock unless any transfer complies with the resale provisions for
“Category 3” companies set forth in Regulation S, is registered under the
Act, or unless an exemption from such registration is available.
Subscriber acknowledges that the Company by this Agreement has
agreed not
to transfer the Common Stock and may require an opinion of legal
counsel
satisfactory to the Company to the effect that a proposed transfer
complies with the resale provisions set forth in Regulation S,
is
registered under the Act or is
exempt.
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(g)
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Subscriber
understands that the Common Stock has not been registered under
the Act,
by reason of a claimed exemption under the provisions of the Act
which
depends, in part, upon the fact that Subscriber is not either a
“U.S.
Person” (as that term is defined in Regulation S) or purchasing the Common
Stock for the benefit of a U.S. Person and on Subscriber’s agreement to
restrict transfers of the Common Stock in the manner described
for
“Category 3” companies in Regulation
S.
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(h)
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Subscriber
certifies that it is not a “U.S. Person” (as that term is defined in
Regulation S) and is not acquiring the Common Stock for the account
or
benefit of any U.S. Person. It is agreed that the Company reserves
the
right to request documentation from the Subscriber to verify the
foregoing
representation. It is also agreed that the Company in its sole
discretion
may reject or limit any subscription and close the offer of Common
Stock
at any time. Subscriber acknowledges that it is aware that the
Company is
relying upon the foregoing representation relating to its non-U.S.
status.
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(i)
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If
Subscriber is a corporation, partnership, trust or other entity,
Subscriber was not formed, organized or incorporated under the
laws of the
United States.
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(j)
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Subscriber,
if not an individual, is empowered and duly authorized to enter
into this
Subscription Agreement under any and all governing documents, partnership
agreements, trust instruments, pension plans, charter, certificate
of
incorporation, bylaw provisions or the like (the “Governing Documents”)
and the person signing on behalf of Subscriber is empowered and
duly
authorized to do so by such Governing
Documents.
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(k)
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This
Subscription Agreement constitutes a valid and binding agreement
of
Subscriber enforceable against Subscriber in accordance with its
terms.
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4.
Agreement
to Refrain from Resales.
Without
in any way limiting the representations, warranties and agreements in Section
3
hereof, Subscriber further agrees that it shall in no event pledge, hypothecate,
sell, transfer, assign or otherwise dispose of the Common Stock or any interest
therein, nor shall Subscriber receive any consideration for the Common Stock
from any person, unless any such transaction is made in accordance with the
provisions of Regulation S, pursuant to a registration under the Act, or
pursuant to an available exemption from registration. The Subscriber further
agrees that it will not engage in any hedging transactions with regard to
the
Common Stock unless in compliance with the Act.
5.
The
Common Stock is to be Legendized.
Subscriber understands and agrees that the certificates representing the
Common
Stock may bear such legends as the Company may consider necessary or advisable
to facilitate compliance with the transfer and hedging restrictions of
Regulation S referred to in Section 4 above, the Act and any other securities
law, including without limitation legends stating that the Common Stock has
not
been registered under the Act or qualified under any state securities laws
and
setting forth the limitations on disposition imposed hereby.
6.
Company
Shall Refuse to Transfer.
Notwithstanding the foregoing, the Company hereby agrees in this Agreement
that
it shall refuse to register any transfer of the Common Stock not made in
accordance with the provisions of Regulation S or pursuant to registration
under
the Act or pursuant to an available exemption from registration. Subscriber
further understands that the Company’s transfer agent shall be notified of the
issuance of the Common Stock and shall be instructed by the Company to place
stop order instructions against any transfer or sale of the Common Stock
for a
period of one year from the date of the last sale of Common Stock made pursuant
to this off3ering.
7.
Indemnification.
Subscriber hereby agrees to indemnify and defend the Company and its directors,
officers and their respective agents and hold them harmless from and against
any
and all liability, damage, cost or expense incurred on account of or arising
out
of:
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(a)
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Any
breach of or inaccuracy in Subscriber’s representations, warranties or
agreements herein;
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(b)
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Any
disposition of the Common Stock contrary to any of Subscriber’s
representations, warranties or agreements herein;
or
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(c)
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Any
action, suit or proceeding based on (i) a claim that any of said
representations, warranties, agreements or information were inaccurate
or
misleading or otherwise cause for obtaining damages or redress
from the
Company or any director or officer of the Company under the Act
or (ii)
any disposition of the Common
Stock.
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8. Successors.
The
representations, warranties and agreements contained in this Subscription
Agreement shall be binding on Subscriber’s successors, assigns, heirs and legal
representatives and shall inure to the benefit of the respective successors
and
assigns of the Company and its directors and officers.
IN
WITNESS WHEREOF, the Subscriber has executed this instrument this ____
day
of
_________
2007.
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PURCHASER
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Name
and Address:
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______________________________
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______________________________
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Signature
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______________________________
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______________________________
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CARDIOVASCULAR
BIOTHERAPEUTICS, INC. HEREBY ACCEPTS THE FOREGOING SUBSCRIPTION SUBJECT TO
THE
TERMS AND CONDITIONS HEREOF AND AGREES TO THE OBLIGATION TO REFUSE TRANSFERS
CONTAINED IN SECTION 6 HEREOF AS OF THE ___
DAY OF
________ 2007.
| AMOUNT OF SUBSCRIPTION | ||
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ACCEPTED:
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By____________________________________
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_________shares of Common | |
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Chief Executive Officer
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Stock for a Subscribed | |
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Amount
of US $____________
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Type
of Ownership (Check One)
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INDIVIDUAL
OWNERSHIP
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CORPORATION/LIMITED
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(One
Signature Required)
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LIABILITY
COMPANIES
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(Please
include charter documents,
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Certified
Corporate Resolution
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Authorizing
signature and Incumbency
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Certificate
of signing Officer)
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PARTNERSHIP
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TRUST
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(Please
include a copy of the statement
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(Please
indicate name of trust, name of
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of
Partnership or Partnership
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include
copy of the Trust Agreement
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Agreement
authorizing signature.)
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or
other authorization.)
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