Exhibit 4.1


 





FORM OF SUBSCRIPTION AGREEMENT


 


Bellerophon Therapeutics, Inc.

184 Liberty Corner Road, Suite 302

Warren, New Jersey 07059


 


Ladies and Gentlemen:


 


The undersigned (the “Investor”) hereby confirms
its agreement with you as follows:


 


1.                  This
Subscription Agreement (this “Agreement”) is made as of the date set forth below between Bellerophon Therapeutics,
Inc., a Delaware corporation (the “Company”), and the Investor.


 


2.                  The
Company has authorized the sale and issuance to certain investors of up to an aggregate of 1,153,846 shares (the “Shares”)
of its Common Stock, par value $0.01 per share (the “Common Stock”), for a purchase price of $13.00 per share
(the “Purchase Price”).


 


3.                  The
offering and sale of the Shares (the “Offering”) is being made pursuant to (1) an effective Registration Statement
on Form S-3 (including the Prospectus contained therein (the “Base Prospectus”), the “Registration
Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”), (2)
if applicable, certain “free writing prospectuses” (as that term is defined in Rule 405 under the Securities Act of
1933, as amended (the “Act”)), that have been or will be filed with the Commission and delivered to the Investor
on or prior to the date hereof and (3) a Prospectus Supplement (the “Prospectus Supplement” and together with
the Base Prospectus, the “Prospectus”) containing certain supplemental information regarding the Shares and
terms of the Offering that will be filed with the Commission and delivered to the Investor (or made available to the Investor by
the filing by the Company of an electronic version thereof with the Commission).


 


4.                  The
Company and the Investor agree that the Investor will purchase from the Company and the Company will issue and sell to the Investor
the Shares of Common Stock set forth below at the aggregate purchase price set forth below. The Shares shall be purchased pursuant
to the Terms and Conditions for Purchase of Shares of Common Stock attached hereto as Annex I and incorporated
herein by reference as if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten.


 


5.                  The
Investor acknowledges that (i) there is no minimum offering amount and (ii) the Investor’s obligations under this Agreement,
including the obligation to purchase Shares, are expressly not conditioned on the purchase by any or all of the Other Investors
(as defined in Annex I hereto) of the Shares that they have agreed to purchase from the Company or the sale by the Company
of any specified aggregate number of Shares.


 


6.                  The
settlement of the Shares purchased by the Investor shall be by delivery by electronic book-entry at The Depository Trust Company
(“DTC”), registered in the Investor’s name and address as set forth below, and released by Computershare Trust
Company, N.A., the Company’s transfer agent (the “Transfer Agent”), to the Investor at Closing (as defined in
Section 3.1 of Annex I hereto).


 


NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL
AT CUSTODIAN (“DWAC”) INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES.


 


AFTER
THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL AT CLOSING REMIT BY WIRE TRANSFER THE
AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT:


 






     


     


    

 


	 	
        

        Bank: [***]
	 
	 	Account Address: [***]	 
	 	 	 
	 	Routing#: [***]	 
	 	Acct#: [***]	 
	 	Acct Name: [***] 	 


 


IT
IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT
BY WAY OF DWAC IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT MAKE
PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR
MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.


 


7.       The
Investor represents that, except as set forth in Exhibit A (the “Investor Questionnaire”) attached hereto,
(a) it is not a FINRA member or an Associated Person (as such term is defined under the FINRA Membership and Registration Rules
Section 1011) as of the Closing, and (b) neither the Investor nor any group of Investors (as identified in a public filing made
with the Commission) of which the Investor is a part in connection with the Offering of the Shares, acquired, or obtained the right
to acquire, 20% or more of the Common Stock (or securities convertible into or exercisable for Common Stock) or the voting power
of the Company on a post-transaction basis.


 


8.       The
Investor represents that it has received (or otherwise had made available to it by the filing by the Company of an electronic version
thereof with the Commission) the Base Prospectus, dated July 6, 2018, which is a part of the Company’s Registration Statement,
the documents incorporated by reference therein and any free writing prospectus relating to this Offering (collectively, the “Disclosure
Package”), prior to or in connection with the receipt of this Agreement. The Investor acknowledges that, prior to the
delivery of this Agreement to the Company, the Investor will receive certain additional information regarding the Offering, including
pricing information (the “Offering Information”). Such information may be provided to the Investor by any means
permitted under the Act, including the Prospectus Supplement, a free writing prospectus and oral communications.


 


9.       No
offer by the Investor to buy Shares will be accepted and no part of the Purchase Price will be delivered to the Company until the
Investor has received the Offering Information and the Company has accepted such offer by countersigning a copy of this Agreement,
and any such offer may be withdrawn or revoked by the Investor, without obligation or commitment of any kind, at any time prior
to the Company sending (orally, in writing or by electronic mail) notice of its acceptance of such offer. An indication of interest
will involve no obligation or commitment of any kind until the Investor has been delivered the Offering Information and this Agreement
is accepted and countersigned by or on behalf of the Company.


 


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	Number of Shares:	 
	Purchase Price Per Share:	 $
	Aggregate Purchase Price:	 





 


Please confirm that the foregoing correctly
sets forth the agreement between us by signing in the space provided below for that purpose.


 


Dated as of:








 


	 	 
	INVESTOR	 	 





	By: 	 	 






	Print Name: 	 	 






	Title:	 	 






	Address: 	 	 
	 	 






	Facsimile: 	 	 


   


Agreed and Accepted


This          day
of                       ,
2020:


 


BELLEROPHON THERAPEUTICS, INC.


 


	By:	 	 
	 	Name:	 
	 	Title:	 



 



     


     


    

 


ANNEX I


 


TERMS AND CONDITIONS FOR PURCHASE OF
SHARES OF COMMON STOCK


 


1.       Authorization
and Sale of the Shares. Subject to the terms and conditions of this Agreement, the Company has authorized the sale of
the Shares.


 


2.       Agreement
to Sell and Purchase the Shares.


 


2.1       At
the Closing (as defined in Section 3.1), the Company will sell to the Investor, and the Investor will purchase from
the Company, upon the terms and conditions set forth herein, the number of Shares set forth on the last page of the Agreement to
which these Terms and Conditions for Purchase of Shares of Common Stock are attached as Annex I (the “Signature
Page”) for the aggregate purchase price therefor set forth on the Signature Page.


 


2.2       The
Company may enter into substantially this same form of Subscription Agreement with certain other investors (the “Other
Investors”) and may complete sales of Shares to them. The Investor and the Other Investors are hereinafter sometimes
collectively referred to as the “Investors,” and this Agreement and the Subscription Agreements executed by
the Other Investors are hereinafter sometimes collectively referred to as the “Agreements.”


 


3.       Closings
and Delivery of the Shares and Funds.


 


3.1       Closing. The
completion of the purchase and sale of the Shares, or a portion thereof, (the “Closing”) shall occur upon delivery
of the Shares against payment therefor on or about [•], which is the [third] business day following the date of pricing of
the Shares, or at such earlier date as the Company and Investors shall agree (the “Closing Date”), in accordance
with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At
the Closing, (a) the Company shall cause the Transfer Agent to deliver to the Investor the number of Shares set forth on the Signature
Page registered in the name of the Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit
A, in the name of a nominee designated by the Investor and (b) the aggregate purchase price for the Shares being purchased
by the Investor will be delivered by or on behalf of the Investor to the Company.


 


3.2       Conditions
to the Company’s Obligations. (a) The Company’s obligation to issue and sell the Shares to the Investor shall
be subject to (i) the receipt by the Company of the purchase price for the Shares being purchased hereunder as set forth on the
Signature Page and (ii) the accuracy of the representations and warranties made by the Investor and the fulfillment of those undertakings
of the Investor to be fulfilled prior to the Closing Date.


 


(b)       Conditions
to the Investor’s Obligations. The Investor’s obligation to purchase the Shares as set forth on the Signature
Page will be subject to the completion of the Offering by the Company.


 


(c)       Disclaimer
Regarding Partial Settlement. The Investor’s obligations are expressly not conditioned on the purchase by any or
all of the Other Investors of the Shares that they have agreed to purchase from the Company or the sale by the Company of any specified
aggregate number of Shares to the Other Investors or in the concurrent registered public offering being conducted by the Company.


 


3.3       Delivery
of Funds. Delivery by Electronic Book-Entry at The Depository Trust Company. After the execution of
this Agreement by the Investor and the Company, at Closing the Investor shall remit by wire transfer the amount of funds
equal to the aggregate purchase price for the Shares being purchased by the Investor to the following account designated by the
Company:


 


	 	
        

        Bank: [***]
	 
	 	Account Address: [***]	 
	 	 	 
	 	Routing#: [***]	 
	 	Acct#: [***]	 
	 	Acct Name: [***]	 


 






     


     


    

 


Investor shall also
furnish the Company a completed W-9 form (or, in the case of an Investor who is not a United States citizen or resident, a W-8
form).


 


3.4       Delivery
of Shares. Delivery by Electronic Book-Entry at The Depository Trust Company. No later than one (1)
business day after the execution of this Agreement by the Investor and the Company, the Investor shall direct the broker-dealer
at which the account or accounts to be credited with the Shares being purchased by such Investor are maintained, which broker/dealer
shall be a DTC participant, to set up a Deposit/Withdrawal at Custodian (“DWAC”) instructing Computershare Trust
Company, N.A., the Company’s transfer agent, to credit such account or accounts with the Shares by means of an electronic
book-entry delivery. Such DWAC shall indicate the settlement date for the deposit of the Shares, which date shall be the Closing.
Simultaneously with the delivery to the Company by the Investor of the funds pursuant to Section 3.3 above, the
Company shall direct its transfer agent to credit the Investor’s account or accounts with the Shares pursuant to the information
contained in the DWAC.


 


4.       Representations,
Warranties and Covenants of the Investor.


 


The Investor acknowledges, represents and
warrants to, and agrees with, the Company that:


 


4.1       The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments
in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor
Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing
Date, (c) in connection with its decision to purchase the number of Shares set forth on the Signature Page, has received and is
relying solely upon (i) the Disclosure Package and the documents incorporated by reference therein and (ii) the Offering Information,
and not any other preliminary or final prospectus pursuant to the Registration Statement and (d) the Investor it is responsible
for conducting its own due diligence investigation with respect to the Company and the Offering, it is purchasing shares in the
Offering based on the results of its own due diligence investigation of the Company, it has negotiated the Offering directly with
the Company and the decision to invest in the Offering will involve a significant degree of risk, including a risk of total loss
of such investment.


 


4.2       (a)
No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering
of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares in any jurisdiction
outside the United States where action for that purpose is required and (b) if the Investor is outside the United States, it will
comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares
or has in its possession or distributes any offering material, in all cases at its own expense.


 


4.3       The
Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this
Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability
of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or regulation).


 


4.4       The
Investor understands that nothing in this Agreement, the Prospectus or any other materials presented to the Investor in connection
with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
The Investor acknowledges that the Company is conducting a concurrent public offering of Common Stock through a syndicate of underwriters
(the “Underwriters”). Investor acknowledges that the Underwriters have not made any offer, representation or warranty
with respect to the Offering, and Investor has not relied, and will not rely, on any statement made by the Underwriters, orally
or in writing, to the contrary.


 






     


     


    

 


4.5       Since
the date on which the Company first contacted such Investor about the Offering, the Investor has not engaged in any transactions
in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Company’s
securities) and has not violated its obligations of confidentiality. Each Investor covenants that it will not engage in any transactions
in the securities of the Company (including Short Sales) or disclose any information about the contemplated offering (other than
to its advisors that are under a legal obligation of confidentiality) prior to the time that the transactions contemplated by this
Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement
to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof,
 “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated
under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges,
forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h)
under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through
non-US broker dealers or foreign regulated brokers.


 


5.       Survival
of Representations, Warranties and Agreements. Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company and the Investor herein will survive the execution
of this Agreement, the delivery to the Investor of the Shares being purchased and the payment therefor.


 


6.       Notices. All
notices, requests, consents and other communications hereunder will be in writing, will be mailed (a) if within the domestic United
States by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, or
by facsimile or (b) if delivered from outside the United States, by International Federal Express or facsimile, and will be deemed
given (i) if delivered by first-class registered or certified mail domestic, three business days after so mailed, (ii) if delivered
by nationally recognized overnight carrier, one business day after so mailed, (iii) if delivered by International Federal Express,
two business days after so mailed and (iv) if delivered by facsimile, upon electric confirmation of receipt and will be delivered
and addressed as follows:


 


	 	(a)        	if to the Company, to:


 


Bellerophon Therapeutics, Inc.


184 Liberty Corner Road, Suite
302


Warren, New Jersey 07059


Attention: Fabian Tenenbaum, Chief
Executive Officer


Email: Fabian.Tenenbaum@bellerophon.com


 


with copies
to:


 


Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.


666 Third Avenue


New York, New York 10017


Facsimile:
212-983-3115


Attention:
Jeffrey Schultz, Esq.


 


(b)         if
to the Investor, at its address on the Signature Page hereto, or at such other address or addresses as may have been furnished
to the Company in writing.


 


7.       Changes. This
Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the Investor.


 


8.       Headings. The
headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed
to be part of this Agreement.


 






     


     


    

 


9.       Severability. In
case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.


 


10.       Governing
Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of New York,
without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction.


 


11.       Counterparts. This
Agreement may be executed in two or more counterparts, each of which will constitute an original, but all of which, when taken
together, will constitute but one instrument, and will become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that the Company shall deliver
its counterpart to the Investor along with the Prospectus Supplement (or the filing by the Company of an electronic version thereof
with the Commission).


 


12.       Confirmation
of Sale. The Investor acknowledges and agrees that such Investor’s receipt of the Company’s counterpart to
this Agreement, together with the Prospectus Supplement (or the filing by the Company of an electronic version thereof with the
Commission), shall constitute written confirmation of the Company’s sale of Shares to such Investor.


 


13.       Press
Release. The Company and the Investor agree that the Company shall issue a press release announcing the Offering and disclosing
all material terms and conditions of the Offering prior to the opening of the financial markets in New York City on the business
day after the date hereof at the latest.


 


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