The TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN. CARDIOVASCULAR BIOTHERAPEUTICS, INC. Warrant for the Purchase of Shares of Common Stock, Par Value $.001 Per Share

EXHIBIT 4.5

THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND, UNLESS SOREGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

THE TRANSFER OF THIS WARRANT IS

RESTRICTED ASDESCRIBED HEREIN.

CARDIOVASCULAR BIOTHERAPEUTICS, INC.

Warrant for the Purchase of Shares of Common Stock,

par value $.001 per Share

 

No. 2   15,000 Shares

THIS CERTIFIES that, for receipt in hand of $15.00 ($0.001 per share of underlying Common Stock)and other value received, PAUL CUOMO (the “Holder”), is entitled to subscribe for and purchase from CARDIOVASCULAR THERAPEUTICS, INC., a Delaware corporation (the “Company’), upon the terms and conditions set forth herein, at anytime or from time to time after August 11, 2005, and before 5:00 P.M. on February 11, 2010, New York time (the “Exercise Period”), 15,000 shares of the Company’s Common Stock, par value $.001 per share (“CommonStock”), at a price of $12.50 per share (the “Exercise Price”). This Warrant is the warrant or one of the warrants (collectively, including any warrants issued upon the exercise or transfer of any such warrants in whole or in part,the “Warrants”) issued pursuant to the Underwriting Agreement, dated February 11, 2005, between First Dunbar Securities Corp., as representative of the several Underwriters named therein, and the Company. As used herein, the term“this Warrant” shall mean and include this Warrant and any Warrant or Warrants hereafter issued as a consequence of the exercise or transfer of this Warrant in whole or in part. This Warrant may not be sold, transferred, assigned orhypothecated until August 11, 2005, except that it may be transferred, in whole or in part, to (i) one or more officers, members or employees of the Holder (or the officers, members or employees of any such member); (ii) any otherunderwriting firm or member of the selling group which participated in the public offering of Common Stock (the “Offering”) which commenced on February 11, 2005 (or the officers, members or employees of any such firm); (iii) asuccessor to the Holder, or the officers, members or employees of such successor; (iv) a purchaser of substantially all of the assets of the Holder; or (v) by operation of law; and the term the “Holder” as used herein shallinclude any transferee to whom this Warrant has been transferred in accordance with the above.

The number of shares of Common Stockissuable upon exercise of the Warrants (the “Warrant Shares”) and the Exercise Price may be adjusted from time to time as hereinafter set forth.

1. This Warrant may be exercised during the Exercise Period, as to the whole or any lesser number of whole Warrant Shares, by the surrender of this Warrant (with the election form at the end hereof duly executed) tothe Company at its office at 50 Congress Street, Boston, MA 02109, or at such other place as is designated in writing by the Company, together with a certified or bank cashier’s check payable to the order of the Company in an amount equal tothe Exercise Price multiplied by the number of Warrant Shares for which this Warrant is being exercised (the “Stock Purchase Price”).

2. (a) In lieu of the payment of the Stock Purchase Price, the Holder shall have the right (but not the obligation), to require the Company to convert this Warrant, in whole or in part, into shares of Common Stock (the “ConversionRight”) as provided for in this Section 2. Upon exercise of the Conversion Right, the Company shall deliver to the Holder (without payment by the Holder of any of the Stock Purchase Price) that number of shares of Common Stock (the“Conversion Shares”) equal to the quotient obtained by dividing (x) the value of this Warrant (or portion thereof as to which the Conversion Right is being exercised if the Conversion Right

 

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is being exercised in part) at the time the Conversion Right is exercised (determined by subtracting the aggregate Stock Purchase Price of the shares ofCommon Stock as to which the Conversion Right is being exercised in effect immediately prior to the exercise of the Conversion Right from the aggregate Current Market Price (as defined in Section 6(c) hereof) of the shares of Common Stock as towhich the Conversion Right is being exercised immediately prior to the exercise of the Conversion Right) by (y) the Current Market Price of one share of Common Stock immediately prior to the exercise of the Conversion Right.

(b) The Conversion Rights provided under this Section 2 may be exercised, in whole or in part, at any time and from time to time,while any Warrants remain outstanding. In order to exercise the Conversion Right, the Holder shall surrender to the Company, at its offices, this Warrant with the Cashless Exercise Form at the end hereof duly executed. The presentation and surrendershall be deemed a waiver of the Holder’s obligation to pay all or any portion of the aggregate purchase price payable for the shares of Common Stock as to which such Conversion Right is being exercised. This Warrant (or so much thereof as shallhave been surrendered for conversion) shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Warrant for conversion in accordance with the foregoing provisions.

3. Upon each exercise of the Holder’s rights to purchase Warrant Shares or Conversion Shares, the Holder shall be deemed to be the holder of recordof the Warrant Shares or Conversion Shares issuable upon such exercise or conversion, notwithstanding that the transfer books of the Company shall then be closed or certificates representing such Warrant Shares or Conversion Shares shall not thenhave been actually delivered to the Holder. As soon as practicable after each such exercise or conversion of this Warrant, the Company shall issue and deliver to the Holder a certificate or certificates for the Warrant Shares or Conversion Sharesissuable upon such exercise or conversion, registered in the name of the Holder or its designee. If this Warrant should be exercised or converted in part only, the Company shall, upon surrender of this Warrant for cancellation, execute and deliver anew Warrant evidencing the right of the Holder to purchase the balance of the Warrant Shares (or portions thereof) subject to purchase hereunder.

4. Any Warrants issued upon the transfer or exercise or conversion in part of this Warrant shall be numbered and shall be registered in a Warrant Register as they are issued. The Company shall be entitled to treat the registered holder ofany Warrant on the Warrant Register as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in such Warrant on the part of any other person, and shall not be liable for anyregistration or transfer of Warrants which are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with the actual knowledge that a fiduciary or nominee is committing a breach of trust in requestingsuch registration or transfer, or with the knowledge of such facts that its participation therein amounts to bad faith. This Warrant shall be transferable only on the books of the Company upon delivery thereof duly endorsed by the Holder or by hisduly authorized attorney or representative, or accompanied by proper evidence of succession, assignment, or authority to transfer. In all cases of transfer by an attorney, executor, administrator, guardian, or other legal representative, dulyauthenticated evidence of his or its authority shall be produced. Upon any registration of transfer, the Company shall deliver a new Warrant or Warrants to the person entitled thereto. This Warrant may be exchanged, at the option of the Holderthereof, for another Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of Warrant Shares (or portions thereof), upon surrender to the Company or its dulyauthorized agent. Notwithstanding the foregoing, the Company shall have no obligation to cause Warrants to be transferred on its books to any person if, in the opinion of counsel to the Company, such transfer does not comply with the provisions ofthe Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder.

5. The Company shall at all timereserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of providing for the exercise of the rights to purchase all Warrant Shares and/or Conversion Shares granted pursuant to the Warrants, such number ofshares of Common Stock as shall, from time to time, be sufficient therefor. The Company covenants that all shares of Common Stock issuable upon exercise of this Warrant, upon receipt by the Company of the full Exercise Price therefor, and all sharesof Common Stock issuable upon conversion of this Warrant, shall be validly issued, fully paid and nonassessable, without any personal liability attaching to the ownership thereof, and will not be issued in violation of any preemptive rights ofstockholders, optionholders, warrantholders and any other persons and the Holders will receive good title to the securities purchased by them, respectively, free and clear of all liens, security interests, pledges, charges, encumbrances,stockholders’ agreements and voting trusts which might be created by acts or omissions to act of the Company.

 

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6. (a) In case the Company shall at any time after the date the Warrants were first issued(i) declare a dividend on the outstanding Common Stock payable in shares of its capital stock, (ii) subdivide the outstanding Common Stock into a greater number of shares, (iii) combine the outstanding Common Stock into a smallernumber of shares, or (iv) issue any shares of its capital stock by reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), then,in each case, the Exercise Price, and the number and kind of securities issuable upon exercise or conversion of this Warrant, in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination orreclassification, shall be proportionately adjusted so that the Holder after such time shall be entitled to receive the aggregate number and kind of shares which, if such Warrant had been exercised or converted immediately prior to such time, theHolder would have owned upon such exercise or conversion and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above shall occur.

(b) In case the Company shall distribute to all holders of Common Stock (including any such distribution made to thestockholders of the Company in connection with a consolidation or merger in which the Company is the continuing corporation), evidences of its indebtedness, cash (other than any cash dividend which, together with any cash dividends paid within the12 months prior to the record date for such distribution, does not (on a per share basis) exceed 5% of the Current Market Price per share of Common Stock at the record date for such distribution) or assets (other than distributions and dividendspayable in shares of Common Stock), or rights, options, or warrants to subscribe for or purchase Common Stock), or securities convertible into or exchangeable for shares of Common Stock, then, in each case, the Exercise Price shall be adjusted bymultiplying the Exercise Price in effect immediately prior to the record date for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the Current Market Price per share of CommonStock on such record date, less the fair market value (as determined in good faith by the board of directors of the Company, whose determination shall be conclusive absent manifest error) of the portion of the evidences of indebtedness or assets soto be distributed, or of such rights, options, or warrants or convertible or exchangeable securities, or the amount of such cash, applicable to one share, and the denominator of which shall be such Current Market Price per share of Common Stock.Such adjustment shall be made successively whenever any such distribution is made, and shall become effective on the record date for the determination of stockholders entitled to receive such distribution.

(c) For the purpose of any computation under this Section 6, the term “Current Market Price” per share of Common Stock onany date shall be deemed to be the average of the daily closing prices for the 30 consecutive trading days immediately preceding the date in question. The closing price for each day shall be the last reported sales price regular way or, in case nosuch reported sale takes place on such day, the closing bid price regular way, in either case on the principal national securities exchange (including, for purposes hereof, the National Market System of The Nasdaq Stock Market, Inc.) on which theCommon Stock is listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the highest reported bid price for the Common Stock as furnished by the National Association ofSecurities Dealers, Inc. through Nasdaq or a similar organization if Nasdaq is no longer reporting such information. If on any such date the Common Stock is not listed or admitted to trading on any national securities exchange and is not quoted byNasdaq or any similar organization, the fair value of a share of Common Stock on such date, as determined in good faith by the board of directors of the Company, whose determination shall be conclusive absent manifest error, shall be used.

(d) No adjustment in the Exercise Price shall be required if such adjustment is less than $.05; provided, however, that anyadjustments which by reason of this Section 6(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 6 shall be made to the nearest cent or to thenearest one-thousandth of a share, as the case may be.

(e) In any case in which this Section 6 shall require that anadjustment in the Exercise Price be made effective as of a record date for a specified event, the Company may elect to defer, until the occurrence of such event, issuing to the Holder, if the Holder exercised or converted this Warrant after suchrecord date, the shares of Common Stock, if any, issuable upon such exercise or conversion over and above the shares of Common Stock, if any, issuable upon such exercise or conversion on the basis of the Exercise Price in effect prior to suchadjustment;

 

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provided, however, that the Company shall deliver to the Holder a due bill or other appropriate instrument evidencing the Holder’s right to receive suchadditional shares upon the occurrence of the event requiring such adjustment.

(f) Upon each adjustment of the ExercisePrice as a result of the calculations made in Section 6(a) or 6(b) hereof, this Warrant shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of shares (calculated to the nearest thousandth) obtained bydividing (i) the product obtained in multiplying the number of shares purchasable upon exercise of this Warrant prior to adjustment of the number of shares by the Exercise Price in effect prior to adjustment of the Exercise Price, by(ii) the Exercise Price in effect after such adjustment of the Exercise Price.

(g) Whenever there shall be anadjustment as provided in this Section 6, the Company shall promptly cause written notice thereof to be sent by registered mail, postage prepaid, to the Holder, at its address as it shall appear in the Warrant Register, which notice shall beaccompanied by an officer’s certificate setting forth the number of Warrant Shares purchasable upon the exercise of this Warrant and the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring suchadjustment and the computation thereof, which officer’s certificate shall be conclusive evidence of the correctedness of any such adjustment absent manifest error.

(h) The Company shall not be required to issue fractions of shares of Common Stock or other capital stock of the Company upon the exerciseor conversion of this Warrant. If any fraction of a share would be issuable on the exercise or conversion of this Warrant (or specified portions thereof) but for the preceding sentence, the Company shall purchase such fraction for an amount in cashequal to the same fraction of the Current Market Price of such share of Common Stock on the date of exercise or conversion of this Warrant.

7. (a) In case of any consolidation with or merger of the Company with or into another corporation (other than a merger or consolidation in which the Company is the surviving or continuing corporation), or in case of any sale, lease orconveyance to another corporation of the property and assets of any nature of the Company as an entirety or substantially as an entirety, such successor, leasing or purchasing corporation, as the case may be, shall (i) execute with the Holderan agreement providing that the Holder shall have the right thereafter to receive upon exercise or conversion of this Warrant solely the kind and amount of shares of stock and other securities, property, cash, or any combination thereof receivableupon such consolidation, merger, sale, lease, or conveyance by a holder of the number of shares of Common Stock for which this Warrant would have been exercisable or into which this Warrant could have been converted immediately prior to suchconsolidation, merger, sale, lease or conveyance, and (ii) make effective provision in its certificate of incorporation or otherwise, if necessary, to effect such agreement. Such agreement shall provide for adjustments which shall be as nearlyequivalent as practicable to the adjustments in Section 6 hereof.

(b) In case of any reclassification or change of theshares of Common Stock issuable upon exercise or conversion of this Warrant (other than a change in par value or from a specified par value to no par value, or as a result of a subdivision or combination, but including any change in the shares intotwo or more classes or series of shares), or in case of any consolidation or merger of another corporation into the Company in which the Company is the continuing corporation and in which there is a reclassification or change (including a change tothe right to receive cash or other property) of the shares of Common Stock (other than a change in par value, or from a specified par value to no par value, or as a result of a subdivision or combination, but including any change in the shares intotwo or more classes or series of shares), the Holder shall have the right thereafter to receive upon exercise or conversion of this Warrant solely the kind and amount of shares of stock and other securities, property, cash, or any combinationthereof receivable upon such reclassification, change, consolidation, or merger by a holder of the number of shares of Common Stock for which this Warrant would have been exercisable or into which this Warrant could have been converted immediatelyprior to such reclassification, change, consolidation or merger. Thereafter, appropriate provision shall be made for adjustments which shall be as nearly equivalent as practicable to the adjustments in Section 6.

(c) The above provisions of this Section 7 shall similarly apply to successive reclassifications and changes of shares of CommonStock and to successive consolidations, mergers, sales, leases or conveyances.

 

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8. In case at any time the Company shall propose (i) to pay any dividend or make any distribution onshares of Common Stock in shares of Common Stock or make any other distribution (other than regularly scheduled cash dividends which are not in a greater amount per share than the most recent such dividend) to all holders of Common Stock; or(ii) to issue any rights, warrants or other securities to all holders of Common Stock entitling them to purchase any additional shares of Common Stock or any other rights, warrants or other securities; or (iii) to effect anyreclassification or change of outstanding shares of Common Stock, or any consolidation, merger, sale, lease or conveyance of property, described in Section 7; or (iv) to effect any liquidation, dissolution or winding-up of the Company; or(v) to take any other action which would cause an adjustment to the Exercise Price; then, and in any one or more of such cases, the Company shall give written notice thereof, by registered mail, postage prepaid, to each Holder at the addressfor such Holder as it shall appear in the Warrant Register, mailed at least 15 days prior to (i) the date as of which the holders of record of shares of Common Stock to be entitled to receive any such dividend, distribution, rights, warrants,other securities are to be determined, (ii) the date on which any such reclassification, change of outstanding shares of Common Stock, consolidation, merger, sale, lease, conveyance of property, liquidation, dissolution or winding-up isexpected to become effective, and the date as of which it is expected that holders of record of shares of Common Stock shall be entitled to exchange their shares for securities or other property, if any, deliverable upon such reclassification,change of outstanding shares, consolidation, merger, sale, lease, conveyance of property, liquidation, dissolution or winding-up, or (iii) the date of such action which would require an adjustment to the Exercise Price.

9. The issuance of any shares or other securities upon the exercise or conversion of this Warrant, and the delivery of certificates or other instrumentsrepresenting such shares or other securities, shall be made without charge to the Holder for any tax or other charge in respect of such issuance. The Company shall not, however, be required to pay any tax which may be payable in respect of anytransfer involved in the issue and delivery of any certificate in a name other than that of the Holder and the Company shall not be required to issue or deliver any such certificate unless and until the person or persons requesting the issue thereofshall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.

10. (a) If, at any time during the period commencing upon February 11, 2005 and ending February 11, 2012, the Company shall file a registration statement (other than on Form S-4, Form S-8 or any successor form) with theSecurities and Exchange Commission (the “Commission”) while any Underwriters’ Securities (as hereinafter defined) are outstanding, the Company shall give all the then holders of any Underwriters’ Securities (the “EligibleHolders”) at least 30 days prior written notice of the filing of such registration statement. If requested by any Eligible Holder in writing within 20 days after receipt of any such notice, the Company shall, at the Company’s sole expense(other than the fees and disbursements of counsel for the Eligible Holders and the underwriting discounts, if any, payable in respect of the Underwriters’ Securities sold by any Eligible Holder), register or qualify all or, at each EligibleHolder’s option, any portion of the Underwriters’ Securities of any Eligible Holder who shall have made such request, concurrently with the registration of such other securities, all to the extent required to permit the public offering andsale of the Underwriters’ Securities through the facilities of all appropriate securities exchanges and the over-the-counter market, and will use its best efforts through its officers, directors, auditors and counsel to cause such registrationstatement to become effective as promptly as practicable. Notwithstanding the foregoing, if the managing underwriter of any such offering shall advise the Company in writing that, in its opinion, the distribution of all or a portion of theUnderwriters’ Securities requested by the Eligible Holders to be included in the registration concurrently with the securities being registered by the Company would materially adversely affect the distribution of such securities by the Companyfor its own account, then any Eligible Holder who shall have requested registration of his or its Underwriters’ Securities shall delay the offering and sale of such Underwriters’ Securities (or the portions thereof so designated by suchmanaging underwriter) for such period, not to exceed 90 days (the “Delay Period”), as the managing underwriter shall request, provided that no such delay shall be required as to any Underwriters’ Securities if any securities of theCompany are included in such registration statement and eligible for sale during the Delay Period for the account of any person other than the Company and any Eligible Holder unless the securities included in such registration statement and eligiblefor sale during the Delay Period for such other person shall have been reduced pro rata to the reduction of the Underwriters’ Securities which were requested to be included and eligible for sale during the Delay Period in such registration. Asused herein, “Underwriters’ Securities” shall mean the Warrants and the Warrant Shares and the Conversion Shares which, in each case, have not been previously sold pursuant to a registration statement or Rule 144 promulgated under theAct.

 

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(b) If, at any time during the period commencing upon February 11, 2005 and endingFebruary 11, 2010, the Company shall receive a written request, from Eligible Holders who in the aggregate own (or upon exercise of all Warrants then outstanding would own) a majority of the total number of shares of Common Stock then included(or upon such exercise would be included) in the Underwriters’ Securities (the “Majority Holders”), to register the sale of all or part of such Underwriters’ Securities, the Company shall, as promptly as practicable, prepare andfile with the Commission a registration statement sufficient to permit the public offering and sale of the Underwriters’ Securities through the facilities of all appropriate securities exchanges and the over-the counter market, and will usesuch registration statement to become effective as promptly as practicable; provided, however, that the Company shall only be obligated to file one such registration statement for which all expenses incurred in connection with such registration(other than the fees and disbursements of counsel for the Eligible Holders and underwriting discounts, if any, payable in respect of the Underwriters’ Securities sold by the Eligible Holders) shall be borne by the Company and one additionalsuch registration statement for which all such expenses shall be paid by the Eligible Holders. Within three business days after receiving any request contemplated by this Section 10(b), the Company shall give written notice to all the otherEligible Holders, advising each of them that the Company is proceeding with such registration and offering to include therein all or any portion of any such other Eligible Holder’s Underwriters’ Securities, provided that the Companyreceives a written request to do so from such Eligible Holder within 20 days after receipt by him or it of the Company’s notice.

(c) In the event of a registration pursuant to the provisions of this Section 10, the Company shall use its best efforts to cause the Underwriters’ Securities so registered to be registered or qualified forsale under the securities or blue sky laws of such jurisdictions as the Holder or Holders may reasonably request; provided, however, that the Company shall not for any such purpose be required to (A) qualify generally to do business as aforeign corporation in any jurisdiction wherein it is not otherwise required to be so qualified, (B) subject itself to taxation in any jurisdiction wherein it is not so subject or (C) consent to general service of process in any suchjurisdiction or otherwise take action that would subject it to the general jurisdiction of the courts of any jurisdiction to which it is not so subject.

(d) The Company shall keep effective any registration or qualification contemplated by this Section 10 and shall from time to time amend or supplement each applicable registration statement, preliminaryprospectus, final prospectus, application, document and communication for such period of time as shall be required to permit the Eligible Holders to complete the offer and sale of the Underwriters’ Securities covered thereby. The Company shallin no event be required to keep any such registration or qualification in effect for a period in excess of nine months from the date on which the Eligible Holders are first free to sell such Underwriters’ Securities.

(e) In the event of a registration pursuant to the provisions of this Section 10, the Company shall furnish to each Eligible Holdersuch number of copies of the registration statement and of each amendment and supplement thereto (in each case, including all exhibits), such reasonable number of copies of each prospectus contained in such registration statement and each supplementor amendment thereto (including each preliminary prospectus), all of which shall conform to the requirements of the Act and the rules and regulations thereunder, and such other documents, as any Eligible Holder may reasonable request to facilitatethe disposition of the Underwriters’ Securities included in such registration.

(f) In the event of a registrationpursuant to the provisions of this Section 10, the Company shall furnish each Eligible Holder of any Underwriters’ Securities so registered with an opinion of its counsel (reasonably acceptable to the Eligible Holders) to the effect that(i) the registration statement has become effective under the Act and no order suspending the effectiveness of the registration statement, preventing or suspending the use of the registration statement, any preliminary prospectus, any finalprospectus or any amendment or supplement thereto has been issued, nor has the Commission or any securities or blue sky authority of any jurisdiction instituted or threatened to institute any proceedings with respect to such an order, (ii) theregistration statement and each prospectus forming a part thereof (including each preliminary prospectus), and any amendment or supplement, thereto, complies as to form with the Act and the rules and regulations thereunder, and (iii) suchcounsel has no knowledge of any material misstatement or omission in such registration statement or any prospectus, as amended or supplemented. Such opinion shall also state the jurisdictions in which the Underwriters’ Securities have beenregistered or qualified for sale pursuant to the provisions of Section 10(c).

 

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(g) In the event of a registration pursuant to the provision of this Section 10, theCompany shall enter into a cross-indemnity agreement and a contribution agreement, each in customary form, with each underwriter, if any, and, if requested, enter into an underwriting agreement containing conventional representations, warranties,allocation of expenses, and customary closing conditions, including, but not limited to, opinions of counsel and accountants’ cold comfort letters, with any underwriter who acquires any Underwriters’ Securities.

(h) The Company covenants and agrees that, until all the Underwriters’ Securities have been sold under a registration statement orpursuant to Rule 144 under the Act, it shall keep current in filing all reports, statements and other materials required to be filed with the Commission to permit holders of the Underwriters’ Securities to sell such securities under Rule 144.

(i) The Company may delay any requested registration hereunder by giving written notice to Eligible Holders who haveelected to include their Underwriters’ Securities in a registration under this Section 10 if the Company’s Board of Directors determines in good faith that a registration at such time would be materially detrimental to the Companyprovided that any such delay shall not exceed ninety (90) days and the Company cannot provide this notice more than twice in any twelve-month period.

11. (a) Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Eligible Holder, its officers, directors, members, employees, agents and counsel, and each person, if any,who controls any such person within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), from and against any and all loss, liability, charge, claim,damage and expense whatsoever (which shall include, for all purposes of this Section 11, but not be limited to, reasonable attorneys’ fees and any and all reasonable expense whatsoever incurred in investigating, preparing or defendingagainst any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), as and when incurred, arising out of, based upon, or in connection with (i) any untrue statementor alleged untrue statement of a material fact contained (A) in any registration statement, preliminary prospectus or final prospectus (as from time to time amended and supplemented), or any amendment or supplement thereto, relating to the saleof any of the Underwriters’ Securities, or (B) in any application or other document or communication (in this Section 11 collectively called an “Application”) executed by or on behalf of the Company or based upon writteninformation furnished by or on behalf of the Company filed in any jurisdiction in order to register or qualify any of the Underwriters’ Securities under the securities or blue sky laws thereof or filed with the Commission or any securitiesexchange; or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon and in conformity withwritten information furnished to the Company with respect to such Eligible Holder by or on behalf of such person expressly for inclusion in any registration statement, preliminary prospectus or final prospectus, or any amendment or supplementthereto, or in any application, as the case may be, or (ii) any breach of any representation, warranty, covenant or agreement of the Company contained in this Warrant. The foregoing agreement to indemnify shall be in addition to any liabilitythe Company may otherwise have, including liabilities arising under this Warrant.

If any action is brought against anyEligible Holder or any of its officers, directors, members, employees, agents or counsel, or any controlling persons of such person (an “Indemnified Party”) in respect of which indemnity may be sought against the Company pursuant to theforegoing paragraph, such indemnified party or parties shall promptly notify the Company in writing of the institution of such action (provided that the failure so to notify shall not relieve the Company from any liability pursuant to thisSection 11(a), but shall only reduce the amount of the indemnification if any to the extent that the Company is materially prejudiced by such delay) and the Company shall promptly assume the defense of such action, including the employment ofcounsel (reasonably satisfactory to such indemnified party or parties) and payment of expenses. Such indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counselshall be at the expense of such indemnified party or parties unless the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such action or the Company shall not have promptly employedcounsel reasonably satisfactory to such indemnified party or parties to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be a conflict of interest between the indemnifiedparty or parties and the Company in the conduct of the defense of such action in any of which events such fees and expenses shall be borne by the Company and the Company shall not have the right to direct the defense of such action on behalf of theindemnified party or parties. Anything in this

 

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Section 11 to the contrary notwithstanding, the Company shall not be liable for any settlement of any such claim or action effected without its writtenconsent, which shall not be unreasonably withheld. The Company shall not, without the prior written consent of each indemnified party that is not released as described in this sentence, settle or compromise any action, or permit a default or consentto the entry of judgment in or otherwise seek to terminate any pending or threatened action, in respect of which indemnity may be sought hereunder (whether or not any indemnified party is a party thereto), unless such settlement, compromise, consentor termination includes an unconditional release of each indemnified party from all liability in respect of such action. The Company agrees promptly to notify the Eligible Holders of the commencement of any litigation or proceedings against theCompany or any of its Securities or any preliminary prospectus, prospectus, registration statement, or amendment or supplement thereto, or any application relating to any sale of any Underwriters’ Securities.

(b) The Holder agrees to indemnify and hold harmless the Company, each director of the Company, each officer of the Company who shall havesigned any registration statement covering Underwriters’ Securities held by the Holder, each other person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, and its ortheir respective counsel, to the same extent as the foregoing indemnity from the Company to the Holder in Section 11(a), but only with respect to statements or omissions, if any, made in any registration statement, preliminary prospectus orfinal prospectus (as from time to time amended and supplemented), or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information furnished to the Company with respect to the Holder by or onbehalf of the Holder expressly for inclusion in any such registration statement, preliminary prospectus or final prospectus, or any amendment or supplement thereto, or in any application, as the case may be. If any action shall be brought againstthe Company or any other person so indemnified based on any such registration statement, preliminary prospectus or final prospectus, or any amendment or supplement thereto, or in any application, and in respect of which indemnity may be soughtagainst the Holder pursuant to this Section 11(b), the Holder shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the indemnified parties, by theprovisions of Section 11(a).

(c) To provide for just and equitable contribution, if (i) an indemnified partymakes a claim for indemnification pursuant to Section 11(a) or 11(b) (subject to the limitations thereof) but it is found in a final judicial determination, not subject to further appeal, that such indemnification may not be enforced in suchcase, even though this Agreement expressly provides for indemnification in such case, or (ii) any indemnified or indemnifying party seeks contribution under the Act, the Exchange Act or otherwise, then the Company (including for this purposeany contribution made by or on behalf of any director of the Company, any officer of the Company who signed any such registration statement, any controlling person of the Company, and its or their respective counsel), as one entity, and the EligibleHolders of the Underwriters’ Securities included in such registration in the aggregate (including for this purpose any contribution by or on behalf of an indemnified party), as a second entity, shall contribute to the losses, liabilities,claims, damages and expenses whatsoever to which any of them may be subject, on the basis of relevant equitable considerations such as the relative fault of the Company and such Eligible Holders in connection with the facts which resulted in suchlosses, liabilities, claims, damages and expenses. The relative fault, in the case of an untrue statement, alleged untrue statement, omission or alleged omission, shall be determined by, among other things, whether such statement, alleged statement,omission or alleged omission relates to information supplied by the Company or by such Eligible Holders, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement,omission or alleged omission. The Company and the Holder agree that it would be unjust and inequitable if the respective obligations of the Company and the Eligible Holders for contribution were determined by pro rata or per capita allocation of theaggregate losses, liabilities, claims, damages and expenses (even if the Holder and the other indemnified parties were treated as one entity for such purpose) or by any other method of allocation that does not reflect the equitable considerationsreferred to in this Section 11(c). In no case shall any Eligible Holder be responsible for a portion of the contribution obligation imposed on all Eligible Holders in excess of its pro rata share based on the number of shares of Common Stockowned by it (or which would be owned by it upon exercise of all Underwriters’ Securities) and included in such registration as compared to the number of shares of Common Stock owned by it (or which would be owned by it upon exercise of allUnderwriters’ Securities by all Eligible Holders) and included in such registration. No person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person whois not guilty of such fraudulent misrepresentation. For purposes of this Section 11(c), each person, if any, who controls any Eligible Holder within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and eachofficer, director, member, employee, agent and counsel

 

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of each such Eligible Holder or control person shall have the same rights to contribution as such Eligible Holder or control person and each person, if any,who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each officer of the Company who shall have signed any such registration statement, each director of the Company, and its or theirrespective counsel shall have the same rights to contribution as the Company, subject in each case to the provisions of this Section 11(c). Anything in this Section 11(c) to the contrary notwithstanding, no party shall be liable forcontribution with respect to the settlement of any claim or action effected without its written consent. This Section 11(c) is intended to supersede any right to contribution under the Act, the Exchange Act or otherwise.

12. Unless registered pursuant to the provisions of Section 10 hereof, the Warrant Shares or Conversion Shares issued upon exercise or conversion ofthe Warrants shall be subject to a stop transfer order and the certificate or certificates evidencing such Warrant Shares shall bear the following legend:

“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND, UNLESS SO REGISTERED, MAY NOTBE OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”

13. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of any Warrant (and upon surrender of any Warrantif mutilated), and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Holder thereof a new Warrant of like date, tenor and denomination.

14. The Holder of any Warrant shall not have, solely on account of such status, any rights of a stockholder of the Company, either at law or in equity,or to any notice of meetings of stockholders or of any other proceedings of the Company, except as provided in this Warrant.

15. ThisWarrant shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed within such State, without regard to the principles thereof respecting conflicts of law.

Dated: February 15, 2005

 

CARDIOVASCULAR BIOTHERAPEUTICS, INC.
By   /s/ Daniel C. Montano
  Name   Daniel C. Montano
  Title   President

 

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FORM OF ASSIGNMENT

(To be executed by the registered holder if such holder desires to transfer the attached Warrant.)

FORVALUE RECEIVED,                                             hereby sells, assigns and transfers unto                      a Warrant to purchase                     shares of Common Stock, par value $.001 per share, of CardioVascular BioTherapeutics, Inc. (the “Company”),together with all right, title and interest therein, and does hereby irrevocably constitute and appoint                      attorney totransfer such Warrant on the books of the Company, with full power of substitution.

Dated: _______________________________

Signature:      

NOTICE

The Signature on the foregoing Assignment must correspond to the name as written upon the fact of this Warrant in every particular, without alteration or enlargement or any change whatsoever.

 

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To: CardioVascular BioTherapeutics, Inc.
  1700 West Horizon Ridge Parkway
  Suite 100
  Henderson, NV 89012

ELECTION TO EXERCISE

The undersigned hereby exercises his or its rights to purchase                     Warrant Shares covered by the within Warrant and tenders payment herewith in the amount of$                     in accordance with the terms thereof, and requests that certificates for such securities be issued in the name of, anddelivered to:

___________________________________________________________

___________________________________________________________

___________________________________________________________

(Print, Name, Address and Social Security

or Tax Identification Number)

and, if such number of sharesshall not be all the shares exchangeable or purchasable under the within Warrant, that a new Warrant for the balance of the Warrant Shares covered by the within Warrant be registered in the name of, and delivered to, the undersigned at the addressstated below.

 

Dated:          Name:     
        (Print)
Address:     
        
        (Signature)

 

 

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To: CardioVascular BioTherapeutics, Inc.
  1700 West Horizon Ridge Parkway
  Suite 100
  Henderson, NV 89012

CASHLESS EXERCISE FORM

(To be executed upon conversion of the attached Warrant)

The undersigned hereby irrevocably elects to surrender its Warrant for the number of shares of Common Stock as shall be issuable pursuant to the cashless exercise provisions set forth in Section 2 of the withinWarrant, in respect of                      shares of Common Stock underlying the within Warrant, and requests that certificates for suchsecurities be issued in the name of and delivered to:

___________________________________________________________

___________________________________________________________

___________________________________________________________

(Print, Name, Address and Social Security

or Tax Identification Number)

and, if suchnumber of shares shall not be all the shares exchangeable or purchasable under the within Warrant, that a new Warrant for the balance of the Warrant Shares covered by the within Warrant be registered in the name of, and delivered to, the undersignedat the address stated below.

 

Dated:          Name:     
        (Print)
Address:     
        
        (Signature)

 

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