Unassociated Document


    TECHNOLOGY
      LICENSE AGREEMENT

     

    BETWEEN

     

    CARDIOVASCULAR
      BIOTHERAPEUTICS, INC.

     

    AND

     

    CARDIO
      NEO-GENESIS, LP

     

     

     

    Dated
      as
      of November 11, 2008

     

     

     

     

     

     

    Exhibit
      10.2

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    
      
        	 	 	 	 	
                Page

              
	
                1

              	
                .

              	
                Definitions

              	
                1

              
	 	 	
                1.1

              	
                Definitions

              	
                1

              
	 	 	
                1.2

              	
                Singular
                  and Plural

              	
                1

              
	 	 	 	 	 
	
                2

              	
                .

              	
                Grant
                  of Licenses

              	
                1

              
	 	 	
                2.1

              	
                Grant
                  of Nonexclusive Licenses to CNG; Right to Sublicense

              	
                1

              
	 	 	
                2.2

              	
                Third
                  Party Licenses to CVBT or Any of Its Affiliates

              	
                2

              
	 	 	
                2.3

              	
                CNG
                  Sublicenses and Licenses to CVBT

              	
                2

              
	 	 	 	 	 
	
                3

              	
                .

              	
                Representations,
                  Warranties and Covenants

              	
                3

              
	 	 	
                3.1

              	
                Representations,
                  Warranties and Covenants of CVBT

              	
                3

              
	 	 	
                3.2

              	
                Representations,
                  Warranties and Covenants of CNG

              	
                3

              
	 	 	 	 	 
	
                4

              	
                .

              	
                Patents

              	 	
                4

              
	 	 	
                4.1

              	
                Derived
                  from the Development

              	
                4

              
	 	 	
                4.2

              	
                Rights
                  After Termination of Agreements

              	
                4

              
	 	 	 	 	 
	
                5

              	
                .

              	
                Confidential
                  Information

              	
                5

              
	 	 	 	 
	
                6

              	
                .

              	
                Permitted
                  Disclosures

              	
                5

              
	 	 	 	 
	
                7

              	
                .

              	
                Disclaimer
                  of Warranty; Consequential Damages

              	
                5

              
	 	 	
                7.1

              	
                Disclaimer
                  of Warranty

              	
                5

              
	 	 	
                7.2

              	
                Consequential
                  Damages

              	
                6

              
	 	 	 	 	 
	
                8

              	
                .

              	
                Indemnification

              	
                6

              
	 	 	
                8.1

              	
                Indemnification
                  by CVBT

              	
                6

              
	 	 	
                8.2

              	
                Indemnification
                  by CNG

              	
                6

              
	 	 	
                8.3

              	
                Defense
                  of Claims

              	
                6

              
	 	 	 	 	 
	
                9

              	
                .

              	
                Term
                  and Termination

              	
                7

              
	 	 	
                9.1

              	
                Term

              	
                7

              
	 	 	
                9.2

              	
                Termination
                  by Mutual Agreement

              	
                7

              
	 	 	
                9.3

              	
                Termination
                  of Development

              	
                7

              
	 	 	
                9.4

              	
                Termination
                  by CVBT or CNG for Breach

              	
                7

              
	 	 	
                9.5

              	
                Termination
                  After Full Payment

              	
                7

              
	 	 	
                9.6

              	
                Effect
                  of Termination

              	
                7

              
	 	 	
                9.7

              	
                Continuing
                  Obligation to Make Payments

              	
                7

              
	 	 	 	 	 
	
                10

              	
                .

              	
                Miscellaneous

              	
                8

              
	 	 	
                10.1

              	
                No
                  Implied Waivers; Rights Cumulative

              	
                8

              
	 	 	
                10.2

              	
                Force
                  Majeure

              	
                8

              
	 	 	
                10.3

              	
                Relationship
                  of the Parties

              	
                8

              
	 	 	
                10.4

              	
                Notices

              	
                8

              
	 	 	
                10.5

              	
                Successors
                  and Assigns

              	
                9

              
	 	 	
                10.6

              	
                Amendments

              	
                9

              
	 	 	
                10.7

              	
                Governing
                  Law

              	
                9

              
	 	 	
                10.8

              	
                Severability

              	
                10

              
	 	 	
                10.9

              	
                Trading
                  Limitations

              	
                10

              
	 	 	
                10.10

              	
                Counterparts

              	
                10

              
	 	 	
                10.11

              	
                Entire
                  Agreement

              	
                10

              


      

    

     

    
      
        
        

      

      
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    TECHNOLOGY
      LICENSE AGREEMENT

     

    This
      Technology License Agreement (the “Agreement”) is made as of November 11, 2008
      by and between CardioVascular BioTherapeutics, Inc., a Delaware corporation
      (“CVBT”) and Cardio Neo-Genesis, LP, a Nevada limited partnership
      (“CNG”).

     

    R
      E C
      I T A L S

     

    A. CVBT
      and
      CNG are parties to the Development Agreement (all capitalized terms herein
      shall
      have the respective meanings set forth in the Development
      Agreement).

     

    B. CVBT
      is
      the owner of the Heart Drug IP and certain intellectual property rights relating
      thereto.

     

    C. Pursuant
      to the Development Agreement, CNG has engaged CVBT to employ the Heart Drug
      IP
      in conducting the Development.

     

    D. In
      the
      Development process, CVBT may develop additional inventions, processes, data,
      know-how, or enhancements of, or relating to, the Heart Drug IP (the “Program
      IP”).

     

    E. CVBT
      desires to acquire, and CNG is willing to grant to CVBT, an exclusive worldwide
      license or sublicense to exploit the Program IP as it deems
      appropriate.

     

    NOW,
      THEREFORE, in consideration of the mutual covenants set forth herein and for
      other good and valuable consideration, the receipt and sufficiency of which
      are
      hereby acknowledged, and in order to induce CVBT to enter into the Agreements,
      CVBT and CNG hereby agree as follows:

     

    1. Definitions.

     

    1.1 Definitions.
      All
      capitalized terms used herein and not otherwise defined shall have the
      respective meanings, to the extent such terms are used herein, set forth in
      Schedule 1.1 attached hereto, which is incorporated by this reference as though
      fully set forth herein.

     

    1.2 Singular
      and Plural.
      Singular and plural forms, as the case may be, of terms defined herein shall
      have correlative meanings.

     

    2. Grant
      of Licenses.

     

    2.1 Grant
      of Nonexclusive Licenses to CNG; Right to Sublicense.

     

    2.1.1 CVBT
      Grant.
      Subject
      to the terms and conditions of this Agreement, CVBT hereby grants to CNG a
      nonexclusive perpetual, worldwide right and license, terminable only as set
      forth herein, to employ CVBT’s Heart Drug IP for purposes of the Development.
      CNG understands and acknowledges that CVBT may grant similar licenses to other
      research and development partnerships for purposes of additional development
      of
      the Heart Drug IP or the Program IP.

     

    
      
        
        

      

      
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    2.2 Third
      Party Licenses to CVBT or Any of Its Affiliates.
      With
      respect to the rights of third parties that may be obtained by CVBT after the
      date hereof, and which are necessary or useful to the Development under the
      Development Agreement, CVBT shall use commercially reasonable efforts to secure
      such rights and the right to sublicense such rights to CNG and shall sublicense
      such rights to CNG whenever possible; provided that CNG shall not be obligated
      to accept any grant of rights or assume any obligations hereunder without its
      prior written consent. If CNG desires to obtain any such rights licensed to
      CVBT
      or any of its Affiliates pursuant to an agreement with any Person other than
      CNG
      (a “Third Party Agreement”), the existence of which CVBT shall promptly inform
      CNG, CNG and CVBT agree to negotiate in good faith regarding the allocation
      between CVBT or any of its Affiliates and CNG of the royalty, license fee,
      milestone fee or other payments payable to the third party and the assumption
      of
      any obligations applicable to such license, if any. CNG shall bear the cost
      of
      obtaining any such rights and shall assume such obligations only in proportion
      to its and its sublicensees’ (other than CVBT’s and/or any of its Affiliates)
      use of such rights. Any sublicense granted to CNG hereunder shall be limited
      to
      the rights that CVBT and/or any of its Affiliates has a right to grant under
      any
      such Third Party Agreement and to any obligations under any such Third Party
      Agreement, and to any obligations assumed by CVBT and/or any of its Affiliates
      in consideration of the grant or assignment of such rights to CVBT which are
      to
      be sublicensed to CNG. No party shall take any action, or fail to take any
      action within its control, that would constitute or give rise to a breach or
      other violation by CVBT or any of its Affiliates of any such Third Party
      Agreement. The parties agree that no future licensing fees are required to
      be
      paid by CNG during the term of this Agreement as consideration for the licenses
      and sublicenses granted to CNG hereunder, except as set forth in this Section
      2.2.

     

    2.3 CNG
      Sublicenses and Licenses to CVBT.

     

    2.3.1 Development
      License.
      CNG
      hereby grants CVBT an exclusive, even as to CNG and all other Persons,
      royalty-free license to employ and engage in any and all uses of the Heart
      Drug
      IP to conduct Development, subject to the terms and conditions of and to the
      extent necessary to perform its obligations under the Development Agreement.
      The
      rights granted under this Section 2.3.1 may be further sublicensed by CVBT
      only
      to its Affiliates or as permitted under of the Development Agreement (and,
      in
      such a case, solely to the extent necessary to perform any subcontracting
      services thereunder) or to other research and development partnerships for
      purposes of additional development of the Heart Drug IP or the Program
      IP.

     

    2.3.2 Commercialization
      License.
      CNG
      hereby grants CVBT an exclusive, even as to CNG and all other Persons, worldwide
      license to use the Program IP to further develop the Heart Drug IP or make,
      have
      made, use or sell products based on the Heart Drug IP and/or Program IP subject
      to the terms and conditions of and to the extent necessary to perform its
      obligations under the Development Agreement. The rights granted under this
      Section 2.3.2 may be further sublicensed by CVBT only to its Affiliates or,
      to
      the extent necessary to perform any subcontracting services under the
      Development Agreement, or to other research and development partnerships for
      purposes of additional development of the Heart Drug IP or the Program IP.
      Payments due to CNG hereunder are as specified in Section 5 of the Development
      Agreement.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    2.3.3 Other
      Licenses.
      The
      foregoing licenses are granted in addition to, and not in substitution for,
      any
      other license granted to CVBT.

     

    3. Representations,
      Warranties and Covenants.

     

    3.1 Representations,
      Warranties and Covenants of CVBT.
      CVBT
      represents, warrants and covenants to CNG as follows:

     

    3.1.1 Organization
      of CVBT.
      CVBT is
      a corporation duly organized, validly existing and in good standing under the
      laws of the State of Delaware with full corporate power and authority adequate
      for executing and delivering and performing its obligations under this
      Agreement.

     

    3.1.2 Authorization.
      The
      execution, delivery and performance of this Agreement have been duly authorized
      by all necessary corporate action on the part of CVBT and this Agreement shall
      constitute a legal, valid and binding obligation of CVBT, enforceable against
      CVBT in accordance with its terms, subject to laws of general application
      relating to bankruptcy, insolvency and the relief of debtors.

     

    3.1.3 Other
      Agreements.
      CVBT
      shall not enter into any agreement, make any commitment, take any action or
      fail
      to take any action that would contravene any material provision of, or
      materially derogate or restrict any of the rights and licenses granted or
      assigned to CNG under, this Agreement; provided however, CVBT may enter into
      other contracts with other research and development partnerships for the purpose
      of further development of the Heart Drug IP or the Program IP. CVBT agrees
      to
      abide and be bound by the terms of any license agreement to which it is a party,
      any of the rights to which have been or will be sublicensed or assigned to
      CNG.

     

    3.1.4 Intellectual
      Property Rights.
      CVBT
      believes that it has sufficient legal and/or beneficial title and ownership
      to
      grant the licenses to the CVBT Heart Drug IP and the other intellectual property
      rights provided in Section 2 above. CVBT is not aware of any allegations that
      it
      has violated, or that CNG by practicing the Heart Drug IP as contemplated in
      the
      Agreements would violate, any intellectual property rights of any third party.
      To the best of its knowledge, there is no material unauthorized use,
      infringement or misappropriation of any of the Heart Drug IP. CVBT is not aware
      of, nor has it received any communications challenging the ownership, validity
      or effectiveness of the Heart Drug IP.

     

    3.1.5 Validity.
      CVBT is
      not aware of any action, suit or inquiry or investigation instituted by any
      federal, state, local or foreign governmental agency or instrumentality which
      questions or threatens the validity of the Agreements.

     

    3.2 Representations,
      Warranties and Covenants of CNG.
      CNG
      represents, warrants and covenants to CVBT as follows:

     

    3.2.1 Organization.
      CNG is
      a limited partnership duly organized, validly existing and in good standing
      under the laws of State of Nevada with full partnership power and authority
      adequate for executing and delivering and performing its obligations under
      this
      Agreement.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    3.2.2 Authorization.
      The
      execution, delivery and performance of this Agreement have been duly authorized
      by all necessary partnership action on the part of CNG, and this Agreement
      shall
      constitute a legal, valid and binding obligation of CNG, enforceable against
      CNG
      in accordance with its terms, subject to laws of general application relating
      to
      bankruptcy, insolvency and the relief of debtors.

     

    3.2.3 Other
      Agreements.
      CNG
      shall not enter into any agreement, make any commitment, take any action or
      fail
      to take any action that would contravene any material provisions of, or
      materially derogate or restrict any of the rights or licenses granted to CVBT
      under this Agreement.

     

    3.2.4 Sublicenses.
      CNG
      agrees to abide and be bound by the terms of the sublicenses granted to it
      in
      accordance with the terms of this Agreement by CVBT under any Third Party
      Agreement or agreement with a third party.

     

    3.2.5 Non-Solicitation.
      CNG
      shall not, during the term of this Agreement, without the prior written consent
      of CVBT, solicit the employment of any person, in any capacity, who, at any
      time
      during the term of this Agreement, shall have been an officer, director,
      employee or agent of CVBT or any of its Affiliates.

     

    3.2.6 Validity.
      CNG is
      aware of no action, suit or inquiry or investigation instituted by any federal,
      state, local or foreign governmental agency or instrumentality which questions
      or threatens the validity of the Agreements.

     

    4. Patents.

     

    4.1 Derived
      from the Development.
      During
      the term of this Agreement, CVBT shall direct and cause appropriate patent
      applications to be prepared, filed and prosecuted in all relevant territories,
      in a timely fashion, with respect to any inventions included in the Program
      IP
      arising out of inventions made by CVBT employees or consultants that CVBT deems
      appropriate. CVBT shall cause any patents issuing thereon to be maintained
      and
      enforced. The expenses of preparing, prosecuting and maintaining such patents
      shall be borne by CVBT. CVBT shall have the right, in its sole discretion,
      to
      enforce any patents issued in conjunction with the Program IP.

     

    4.2 Rights
      After Termination of Agreements.
      After
      the expiration or termination of this Agreement and the Development Agreement,
      CVBT shall have the exclusive right, at its sole expense, to prepare and
      prosecute, in its name, patent applications, and to maintain patents issued
      with
      respect to the Program IP or the Heart Drug IP. CVBT shall have the right,
      in
      its sole discretion, to enforce any patents issued with regard to the Program
      IP
      and/or Heart Drug IP.

     

    
      
        
        

      

      
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    5. Confidential
      Information.
      Any
      party receiving Confidential Information shall maintain the confidential and
      proprietary status of such Confidential Information, keep such Confidential
      Information and each part thereof within its possession or under its control
      sufficient to prevent any activity with respect to the Confidential Information
      that is not specifically authorized or contemplated by this Agreement, use
      all
      commercially reasonable efforts to prevent the disclosure of any Confidential
      Information to any other Person, and use commercially reasonable efforts to
      ensure that such Confidential Information is used only for those purposes
      specifically authorized or contemplated herein; provided, however, that such
      restriction shall not apply to any Confidential Information that is (a)
      independently developed by the receiving party outside the scope of this
      Agreement or the Development Agreement (provided, however, that such restriction
      shall apply to any technology licensed by CVBT to CNG under this Agreement),
      (b)
      in the public domain at the time of its receipt or thereafter becomes part
      of
      the public domain through no fault of the receiving party, (c) received without
      an obligation of confidentiality from a third party having the right to disclose
      such information, (d) released from the restrictions of this Section 4 by the
      express written consent of the disclosing party, (e) disclosed to any permitted
      assignee, permitted sublicensee or permitted subcontractor of CVBT or CNG under
      the Agreements (if such assignee, sublicensee or subcontractor is subject to
      the
      provisions of this Section 4 or substantially similar provisions) or (f)
      required by law, statute, rule or court order to be disclosed provided the
      receiving party promptly provides sufficient notice to the disclosing party
      so
      that the disclosing party may seek a protective order or other confidential
      treatment (the disclosing party shall, however, use commercially reasonable
      efforts to obtain confidential treatment of any such disclosure). The
      obligations set forth in this Section 4 shall survive for a period of ten years
      from the expiration or termination (other than by exercise) of the Purchase
      Option. Without limiting the generality of the foregoing, CVBT and CNG each
      shall use commercially reasonable efforts to obtain, if not already in place,
      confidentiality agreements from their respective employees and agents, similar
      in scope to this Section 4, to protect the Confidential
      Information.

     

    6. Permitted
      Disclosures.
      Notwithstanding the provisions of Section 4 hereof, CVBT and CNG (and their
      permitted sublicensees) may, to the extent necessary, disclose and use
      Confidential Information, consistent with the rights of CVBT and CNG otherwise
      granted hereunder (a) for the purpose of securing institutional or government
      approval to clinically test or market any Heart drug developed with the use
      of
      the Program IP or (b) for the purpose of securing patent protection for an
      invention within the scope of the Program IP.

     

    7. Disclaimer
      of Warranty; Consequential Damages.

     

    7.1 Disclaimer
      of Warranty.
      Nothing
      in this Agreement shall be construed as a representation made or warranty given
      by any party hereto that the practice by a party hereto of any license granted
      hereunder, or that the use of any Heart Drug IP or Program IP licensed
      hereunder, will not infringe the patent or proprietary rights of any other
      Person. CNG understands that the Development shall involve technologies that
      have not been approved by any regulatory authority and that CVBT does not
      guaranty the safety or usefulness of any Heart Drug product developed with
      the
      Heart Drug IP or the Program IP. In addition, CVBT and CNG acknowledge that
      the
      Heart Drug IP or Program IP is licensed to CNG and sublicensed to CVBT hereunder
      as is, and CVBT and CNG expressly disclaim and hereby waive, release and
      renounce any warranty, express or implied, with respect to such Heart Drug
      IP or
      Program IP, including, without limitation, any warranty of merchantability,
      fitness for a particular purpose or noninfringement. Except as expressly set
      forth in this Agreement, CVBT and CNG disclaim all warranties of any nature,
      express or implied.

     

    
      
        
        

      

      
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    7.2 Consequential
      Damages.
      None of
      the parties to this agreement shall be entitled to recover from another party
      hereto any special, incidental, consequential or punitive damages.

     

    8. Indemnification.

     

    8.1 Indemnification
      by CVBT.
      CVBT
      shall indemnify the CNG Indemnitees, pay on demand and protect, defend, save
      and
      hold harmless each CNG Indemnitee from and against any and all Claims incurred
      by or asserted against any CNG Indemnitee of whatever kind or nature, including,
      without limitation, any claim or liability based upon negligence, warranty,
      strict liability, violation of government regulation or infringement of patent
      or other propriety rights, arising from or occurring as a result of (a) any
      use
      of the Program IP by CVBT or any Affiliate, agent or sublicensee of CVBT (other
      than CNG in contravention of the terms of this Agreement), (b) any of the
      Development or any other services to be performed by CVBT during the term of
      the
      Agreements pursuant to the Agreements, including, without limitation, any
      workers’ compensation claim by any CVBT employee or consultant or other Person
      or (c) subject to Section 7.2, any breach of the Agreements by CVBT, except,
      with respect to CNG Indemnitees, in cases in which Claims of CNG Indemnitees
      are
      based upon the gross negligence or willful misconduct of an CNG Indemnitee.
      An
      CNG Indemnitee shall promptly notify CVBT of any Claim with respect to which
      an
      CNG Indemnitee is seeking indemnification hereunder, upon becoming aware
      thereof, and permit CVBT at CVBT’s cost to defend against such Claim and shall
      cooperate in the defense thereof.

     

    8.2 Indemnification
      by CNG.
      CNG
      shall indemnify the CVBT Indemnitees, pay on demand and protect, defend, save
      and hold harmless each CVBT Indemnitee from and against any and all Claims
      incurred by or asserted against any CVBT Indemnitee of whatever kind or nature,
      including, without limitation, any claim or liability based upon negligence,
      warranty, strict liability, violation of government regulation or infringement
      of patent or other propriety rights, arising from or occurring as a result
      of
      (a) any use of the Heart Drug IP or Program IP by CNG or any sublicensee of
      CNG
      (other than the use of such by CVBT whether pursuant to the Agreements or
      otherwise) or (b) subject to Section 7.2, any breach of the Agreements by CNG,
      except, with respect to CVBT Indemnitees, in cases in which Claims are based
      upon the gross negligence or willful misconduct of a CVBT Indemnitee. An
      Indemnitee hereunder shall promptly notify CNG of any Claim with respect to
      which such Indemnitee is seeking indemnification hereunder, upon becoming aware
      thereof, and permit CNG at CNG’s cost to defend against such Claim and shall
      cooperate in the defense thereof.

     

    8.3 Defense
      of Claims.
      None of
      CVBT or CNG shall enter into, or permit, any settlement of any Claim for which
      indemnification is being sought by such party hereunder without the express
      written consent of each other party (or a CVBT or CNG Indemnitee, as the case
      may be), which consent shall not be unreasonably withheld or delayed. Each
      party
      may, at its option and expense, have its own counsel participate in any
      proceeding which is under the direction of another party (the “Indemnifying
      Party”) and will cooperate with the Indemnifying Party and its insurer in the
      disposition of any such matter; provided, however, that if the Indemnifying
      Party shall not defend such Claim, the other party shall have the right to
      defend such Claim itself and recover from the Indemnifying Party all reasonable
      attorneys’ fees and expenses incurred by it during the course of such
      defense.

     

    
      
        
        

      

      
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    9. Term
      and Termination.

     

    9.1 Term.
      This
      Agreement shall be effective as of the date hereof and shall continue in full
      force and effect indefinitely, unless terminated earlier as provided in Sections
      9.2, 9.3, 9.4 and 9.5 hereof.

     

    9.2 Termination
      by Mutual Agreement.
      By
      mutual agreement, the parties hereto may at any time terminate this Agreement
      and the Development on mutually acceptable terms.

     

    9.3 Termination
      of Development.
      At any
      time, and upon notice to CNG, CVBT may elect to terminate the Development
      process due to insufficient progress, overwhelming competition or outright
      inability to make progress toward a commercially marketable Heart
      drug.

     

    9.4 Termination
      by CVBT or CNG for Breach.
      Either
      CVBT or CNG shall have the right to terminate this Agreement, effective as
      set
      forth in a written notice of the occurrence of a material breach of this
      Agreement. Such termination must be preceded by written notice delivered to
      the
      breaching party specifying the breach and offering a reasonable opportunity
      and
      no less than thirty (30) days for the breaching party to cure such
      breach.

     

    9.5 Termination
      After Full Payment.
      This
      Agreement shall terminate upon payment in full by CVBT to CNG of the maximum
      amount set forth in Section 5 of the Development Agreement.

     

    9.6 Effect
      of Termination.
      If this
      Agreement is terminated pursuant to Sections 9.2 or 9.3, neither party shall
      have any liability to the other except as agreed upon pursuant to the
      termination and the ownership of the Heart Drug IP and the Program IP including,
      without limitation, any patents that may issue based on the Heart Drug IP or
      Program IP, will revert to CVBT without further action on the part of any of
      the
      parties. If the Agreement is terminated pursuant to Section 9.4, the parties
      shall have such remedies as may be available under applicable law. If this
      Agreement is terminated pursuant to Section 9.5, all right, title and interest
      in the Heart Drug IP and the Program IP shall revert to CVBT without further
      action on the part of any of the parties. However, to the extent that evidence
      of any such reversion is required to be placed in a writing, CNG will, at CVBT’s
      request, execute and deliver to CVBT specific assignments of the Heart Drug
      IP
      or the Program IP and execute, acknowledge and deliver to CVBT such other
      documents and take such further actions as CVBT may consider necessary or
      appropriate to confirm or vest title in such intellectual property in
      CVBT.

     

    9.7 Continuing
      Obligation to Make Payments.
      Notwithstanding anything contained herein to the contrary, upon termination
      of
      this Agreement, the obligation to pay any amounts payable by any party to
      another party which accrued prior to such termination shall
      survive.

     

    
      
        
        

      

      
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    10. Miscellaneous.

     

    10.1 No
      Implied Waivers; Rights Cumulative.
      No
      failure on the part of CVBT or CNG to exercise and no delay in exercising any
      right, power, remedy or privilege under this Agreement or provided by statute
      or
      at law or in equity or otherwise, including, without limitation, the right
      or
      power to terminate this Agreement, shall impair, prejudice or constitute a
      waiver of any such right, power, remedy or privilege or be construed as a waiver
      of any breach of this Agreement or as an acquiescence therein, nor shall any
      single or partial exercise of any such right, power, remedy or privilege
      preclude any other or further exercise thereof or the exercise of any other
      right, power, remedy or privilege.

     

    10.2 Force
      Majeure.
      CVBT
      and CNG shall each be excused for any failure or delay in performing any of
      their respective obligations under this Agreement, if such failure or delay
      is
      caused by a force, effect, cause or circumstance beyond the control of the
      nonperforming party.

     

    10.3 Relationship
      of the Parties.
      Nothing
      contained in this Agreement is intended or is to be construed to constitute
      CVBT
      and CNG as partners or joint venturers or one party as an employee of any other
      party. Except as expressly provided herein, no party hereto shall have any
      express or implied right or authority to assume or create any obligations on
      behalf of or in the name of any other party or to bind any other party to any
      contract, agreement or undertaking with any third party.

     

    10.4 Notices.
      All
      notices, requests and other communications to CVBT or CNG hereunder shall be
      in
      writing (including telecopy or electronic mail (“e-mail”) transmissions), shall
      refer specifically to this Agreement and shall be personally delivered or sent
      by telecopy, facsimile or e-mail transmission or by registered mail or certified
      mail, return receipt requested and postage prepaid, or by reliable overnight
      courier service, in each case to the respective address specified below (or
      to
      such address as may be specified in writing to the other party
      hereto):

     

    
      	
            	If
              to CVBT, addressed to:	
              CardioVascular
                BioTherapeutics, Inc.

            


    

    1635
      Village Center Circle

    Suite
      250

    Las
      Vegas, Nevada 89134

    Attention:
      Mickael A. Flaa, CFO

    Fax
      No.:
      702-304-2120

    E-mail:
      mflaa@cvbt.com

     

    with
      a
      copy to the attention of General Counsel (using the same information above
      except if via email, then also to vroth@cvbt.com)

     

    
      	
            	If
              to CNG, addressed to:	
              Cardio
                Neo-Genesis, LP

            


    

    3428
      Bedfordshire Place

    Las
      Vegas, Nevada 89129

    Attention:
      Jody L. Mack 

    Fax
      No.:
      702-341-6519

    E-mail:
      moxy2010@gmail.com

     

    
      
        
        

      

      
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    Each
      party shall provide each other party with copies of any notices sent hereunder,
      with such copies sent at the same time as the original notice. Any notice or
      communication given in conformity with this Section 10.4 shall be deemed to
      be
      effective when received by the addressee, if delivered by hand, telecopy or
      e-mail transmission, three days after mailing, if mailed, and one business
      day
      after delivery either to a reliable overnight courier service or via any
      electronic means permissible under this Agreement provided the sender has
      confirmation of successful transmission.

     

    10.5 Successors
      and Assigns.
      The
      terms and provisions of this Agreement shall inure to the benefit of, and be
      binding upon, CVBT, CNG and their respective successors and assigns; provided,
      however, that CVBT and CNG may not assign or otherwise transfer any of their
      respective rights and interests, nor delegate any of their respective
      obligations, hereunder, including, without limitation, pursuant to a merger
      or
      consolidation, without the prior written consent of the other party hereto;
      provided further, however, that CVBT may fully assign its respective rights
      and
      interests, and delegate its respective obligations, hereunder, effective upon
      written notice thereof (a) to an Affiliate if such Affiliate assumes all of
      the
      obligations of CVBT hereunder and this Agreement remains binding upon CVBT;
      or
      (b) to any Person that acquires all or substantially all of the assets of CVBT
      or which is the surviving Person in a merger or consolidation with CVBT if
      such
      Person assumes all the obligations of CVBT hereunder. Notwithstanding the
      foregoing, CNG shall not have the right to assign its rights to the Heart Drug
      IP granted herein without the written consent of CVBT. Any attempt to assign
      or
      delegate any portion of this Agreement in violation of this Section 10.5 shall
      be null and void. Subject to the foregoing any reference to CVBT or CNG
      hereunder shall be deemed to include the successors thereto and assigns
      thereof.

     

    10.6 Amendments.
      No
      amendment, modification, waiver, termination or discharge of any provision
      of
      this Agreement, nor consent by CVBT or CNG to any departure therefrom, shall
      in
      any event be effective unless the same shall be in writing specifically
      identifying this Agreement and the provision intended to be amended, modified,
      waived, terminated or discharged and signed by CVBT and CNG, and each amendment,
      modification, waiver, termination or discharge shall be effective only in the
      specific instance and for the specific purpose for which given and shall not
      be
      deemed to be a wavier, termination or discharge for any subsequent, individual
      or repeated similar or different instance or purpose. No provision of this
      Agreement shall be varied, contradicted or explained by any other agreement,
      course of dealing or performance or any other matter not set forth in an
      agreement in writing and signed by CVBT and CNG.

     

    10.7 Governing
      Law.
      This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      State of Delaware, as applied to contracts made and performed entirely within
      the State of Delaware. Except as otherwise provided herein, any claim or
      controversy arising out of or related to this contract or any breach hereof
      shall be submitted to a court of competent jurisdiction in the State of Nevada,
      and the parties hereby consent to the jurisdiction and venue of such
      court.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    10.8 Severability.
      If any
      provision hereof should be held invalid, illegal or unenforceable in any respect
      in any jurisdiction, then, to the fullest extent permitted by law, (a) all
      other
      provisions hereof shall remain in full force and effect in such jurisdiction
      and
      shall be liberally construed in order to carry out the intentions of the parties
      hereto as nearly as may be possible and (b) such invalidity, illegality or
      unenforceability shall not affect the validity, legality or enforceability
      of
      such provision in any other jurisdiction. To the extent permitted by applicable
      law, CVBT and CNG hereby waive any provision of law that would render any
      provision hereof prohibited or unenforceable in any respect.

     

    10.9 Trading
      Limitations.
      In
      addition to being Confidential Information, the results of the Development
      will
      be deemed material nonpublic information until disclosed to the public by CVBT
      in a report to the Securities and Exchange Commission (the “SEC”), or, if
      applicable and/or permissible and/or appropriate, in a press release or
      published on CVBT’s web site in an event where a filing with the SEC is not
      required or is discretionary. If CNG is in possession of, or otherwise has
      knowledge of, the results of the Development before such public disclosure
      by
      CVBT, CNG acknowledges and agreed that it may not trade in CVBT securities.
      Further, CNG agrees to obtain a similar acknowledgment agreement from its
      partners.

     

    10.10 Counterparts.
      This
      Agreement may be executed in any number of counterparts, each of which
      counterpart, when so executed and delivered, shall be deemed to be an original,
      and all of which counterparts, taken together, shall constitute one and the
      same
      instrument.

     

    10.11 Entire
      Agreement.
      This
      Agreement, together with any agreements referenced herein, constitute, on and
      as
      of the date hereof, the entire agreement of CVBT and CNG with respect to the
      subject matter hereof, and all prior or contemporaneous understandings or
      agreements, whether written or oral, between CVBT and CNG with respect to such
      subject matter are hereby superseded in their entirety.

     

     

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      OF THIS PAGE INTENTIONALLY LEFT BLANK]

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF the parties have executed this Agreement as of the date first
      above written.

     

    
      
        	 	 CARDIOVASCULAR
                BIOTHERAPEUTICS, INC.
	 	 	 	 
	 	 By	/s/
                Mickael A. Flaa
	 	 	
                Mickael
                  A. Flaa

                Its
                  Chief Financial Officer

              
	 	 	 
	 	 	 	 
	 	 Cardio Neo-Genesis,
                LP
	 	 	 	 
	 	 By 	 Neo Cardio Partners,
                LLC
	 	 	 Its General
                Partner
	 	 	 
	 	 	 	 
	 	 	 By
                	/s/
                Jody L. Mack 
	 	 	 	Jody L. Mack
                Its
                  Manager

              


      

    

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    


    SCHEDULE
      1.1

     

    DEFINITIONS

     

    “Affiliate”
      of a person shall mean a Person that directly or indirectly through one or
      more
      intermediaries, controls, is controlled by or is under common control with
      such
      Person. “Control” (and, with correlative meanings, the terms “controlled by” and
“under common control with”) shall mean the possession of the power to direct or
      cause the direction of the management and policies of such Person, whether
      through the ownership of voting stock, by contract or otherwise. In the case
      of
      a corporation, “control” shall mean, among other things, the direct or indirect
      ownership of more than 50% of its outstanding voting stock.

     

    “Agreements”
      shall mean the Technology Agreement and the Development Agreement.

     

    “Claim”
      shall mean any and all liabilities, damages, losses, settlements, claims,
      actions, suits, penalties, fines, costs or expenses (including, without
      limitation, reasonable attorneys’ fees).

     

    “Confidential
      Information” shall mean the Heart Drug IP and all Program IP developed by CVBT
      (and its Affiliates) and disclosed to CNG or by CNG to CVBT pursuant to the
      Agreements.

     

    “CVBT
      Indemnitee” shall mean CVBT, its successors and assigns, and the directors,
      officers, employees, agents and counsel thereof.

     

    “Development”
      shall mean the further development of the Program IP for the purpose of
      advancing the FDA Process toward development of a Heart drug approved for
      commercialization by the FDA.

     

    “Development
      Agreement” shall mean the Development Agreement dated as of November 11, 2008,
      between CVBT and CNG, as amended, modified or supplemented from time to
      time.

     

    “FDA”
      shall mean the United States Food and Drug Administration or any successor
      agency or authority, the approval of which is required to market biologic
      products in the United States.

     

    “FDA
      Process” shall mean the clinical trials and other activities necessary to obtain
      FDA approval for commercialization.

     

    
      
        
        

      

      
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    “Force
      Majeure” shall mean any act of God, any accident explosion, fire, storm,
      earthquake, flood, drought, peril of the sea, riot, embargo, war or foreign,
      federal, state or municipal order of general application, seizure, requisition
      or allocation, any failure or delay of transportation, shortage of or inability
      to obtain supplies, equipment, fuel or labor or any other circumstance or event
      beyond the reasonable control of the party relying upon such circumstance or
      event.

     

    “Person”
      shall mean any individual, partnership, corporation, firm, association,
      unincorporated organization, joint venture, trust or other entity.

     

    “Program
      IP” shall mean the Heart Drug IP and any enhancements, substitutions, or
      improvements to the Heart Drug IP, as well as any new data or know-how
      associated therewith, that is discovered, developed or otherwise acquired by
      CVBT pursuant to the Development Agreement.

     

    “CNG
      Indemnitee” shall mean CNG, its successors and assigns, and the directors,
      officers, employees, agents and counsel thereof.

     

    “Technology
      Agreement” shall mean this Technology License Agreement dated as of November 11,
      2008, between CVBT and CNG, as amended, modified or supplemented from time
      to
      time.

     

    “Heart
      Drug IP” shall be the intellectual property described in Schedule 2.1 to the
      Development Agreement which schedule is incorporated herein by this
      reference.

     

    
      
        
        

      

      
        13