CardioVascular BioTherapeutics (fka CVBT)

[BarcaOz]

I found the following on the court website today. It's the summary judgement application. There are some 150 pages of information. The main document is pasted below.
It makes for horrendous reading. It appears Montano forged documentary evidence claiming it was a CVBT internal document. I would have to believe that the judge/court won't be too thrilled at his obvious criminal activity. My contact told me there is another document that will be filed in the next day or two which will be even more damaging to Montano & his cabal of ne'er-do-wells.



Case 18-15410-gs Doc 80 Entered 12/11/18 19:54:58 Page 1 of 17






1 Frank L. Broyles
Admitted pro hac vice
2 TX Bar 03230500
222 W. Las Colinas Blvd.
3 1650 East Tower
Irving, TX 75039
4 [phone]
5 [e-mail]
6 Matthew L. Johnson (6004) Russell G. Gubler (10889)
7 JOHNSON & GUBLER, P.C. 8831 West Sahara Avenue
8 Las Vegas, Nevada 89117 Phone: [phone]
9 Fax: [phone]
e-mail: [e-mail]
10
Attorneys for CardioVascular Biotherapeutics, Inc.,
11 Alleged Debtor
12 UNITED STATES BANKRUPTCY COURT
13 DISTRICT OF NEVADA

14 In re
15 CARDIOVASCULAR
16 BIOTHERAPEUTICS, INC.,
17 Alleged Debtor
18
19
20
21

Case No: BK-S-18-15410-GS

Chapter 7 (INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)
(.pdf is bookmarked)

TO THE HONORABLE UNITED STATES BANKRUPTCY COURT:
22
Alleged Debtor CardioVascular BioTherapeutics, Inc. (commonly referenced as
23
24 “CVBT”) files this Amended Motion for Summary Judgment or alternative relief under
25 11 U.S.C. §305(a)(1) alleging as a matter of law that as of September 10, 2018, (the
26 Petition Date.

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1
2 (1) CVBT was not obligated to at least three creditors who held debts not
3 subject to a bona fide dispute:
4
(2) CVBT was not eligible to be a debtor in an involuntary bankruptcy because
5
6 it was paying its debts as they generally became due and had been so paying its
7 debts as they generally became due for over three years; and
8 (3) This involuntary case was filed for an improper purpose.
9 Alternatively CVBT requests this Court dismiss this case pursuant to 11 U.S.C.
10 §305(a)(1) because the interests of the debtor and creditors would be better served by such 11
dismissal.
12
I. BACKGROUND
13
14 A. The Proxy Fight for Control of CVBT
15 Prior to 2012 Calvin A. Wallen, III was a major lender to and investor in CVBT.
16 Wallen became concerned that CVBT was being mismanaged and initiated a proxy fight
17 for control of CVBT, the alleged debtor.
18 CVBT is a corporation chartered in Delaware. In 2013 a Delaware court adjudicated 19
the Wallen proxy fight for control of CVBT. There were two factions: the Daniel C.
20
21 Montano (“Montano”) faction and the Calvin A. Wallen, III (“Wallen) faction. The
22 Wallen faction prevailed and the Montano faction was totally removed from management
23 by the Delaware Court. Genuine copies of the two orders entered by the Delaware Court
24 are attached as Exhibits 1and 2 to the Motion and the Affidavit of Wallen.
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1 B. The Chapter 7 Bankruptcy of Daniel C. Montano
2 At the time that Montano was removed from CVBT as a manager Montano had
3 personally guaranteed over $2,000,000 of debt owed by CVBT to Wallen. Wallen sued 4
Montano under the guarantee and obtained a state court judgment for the debt. Wallen
5
6 began collection actions, which caused Montano to file a voluntary Chapter 7 in this
7 District. [Attached Walllen Affidavit, paragraph 3]. That case remains pending as Case 8 No. 13-16289-gs.
9 Wallen also filed an adversary proceeding against Montano seeking denial of a
10 Chapter 7 discharge. That ultimately resulted in Montano’s discharge being denied. 11
(Judicial notice is requested of the order denying discharge entered by this Court in the
12
case at D.E. #255, In re Daniel Carmichael Montano, Case No. 13-16289-gs).
13
14 CVBT first learned at the deposition of Judith Luell on December 3, 2018 that this
15 bankruptcy was being funded in whole or in part by Viktoriya (a/k/a Vika) Montano, the
16 spouse of Chapter 7 Debtor, Daniel C. Montano. [Appendix I, J. Luell Deposition
17 Transcript, page 39 at lines 8-24].
18 C. The CVBT/Montano Arbitration
19
CVBT filed a proof of claim in the Montano bankruptcy at Claim No. 16 in the
20
original amount of $1,325,207.19. [Judicial Notice Requested]. Wallen also filed proof
21
22 of claim No. 8 in the original amount of $2,295,142.22. [Judicial Notice Requested].
23 Montano objected to both proofs of claim. [D.E. 383 and 384, Case No. 13-16289]. 24
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1 On July 27, 2018 this Court entered an order granting CVBT’s Motion to Abate
2 the Dispute between Montano and CVBT pending arbitration and that the parties advise
3 the Court on arbitration proceedings that might impact trial of the claims dispute between 4
the Debtor and CVBT. [Judicial Notice requested of Court’s order at D.E. 448 in Case
5
6 No. 13-16289-gs].
7 On September 24, 2018 this Court signed an amended order abating for six months
8 the claim dispute between CVBT and Montano to permit the parties to arbitrate the
9 dispute. [Judicial Notice Requested of D.E. 470 in Case No. 13-16289].
10 CVBT filed its arbitration demand on July 19, 2018 and that case is pending. A 11
genuine copy of CVBT’s arbitration demand as filed with the AAA is attached as “CVBT
12
Exhibit 3.” CVBT alleges against Montano and several related persons that they are liable
13
14 to CVBT for Breach of Contract, Copyright Infringement, Theft of Trade Secrets, Civil
15 Rico Violations, Civil Conspiracy. The demand seeks damages and injunctive relief. An
16 arbitrator has been appointed.
17 D. The Theft of CVBT’s Intellectual Property
18 Montano formed two biotech companies that CVBT contends were formed to 19
compete with CVBT and probably received intellectual property stolen from CVBT.
20
21 These companies generically are called the “Zhittya Companies” and are specifically:
22 Zhittya Regenerative Medicine, Inc. (“Zhittya 1”) and Zhittya Genesis Medicine, Inc.
23 (“Zhittya 2”). Zhittya 2 was formed immediately before the involuntary petition was
24 filed against CVBT.
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1 Zhittya 1 forfeited its charter for failing to file required public information reports.
2 In response to this failure Zhittya 2 was formed by Dan Montano and shortly thereafter
3 this case was filed by alleged creditors who had been loyal to Dan Montano prior to his 4
ouster by the Delaware Court.
5
6 CVBT contends that Montano is illegally using stolen intellectual property of
7 CVBT and is pursuing arbitration claims against Montano and Zhittya 1 and intends to
8 add Zhittya 2. As previously noted, a genuine copy of the arbitration demand is attached
9 as “CVBT Exhibit 3.”
10 E. The Involuntary Bankruptcy Petition Filed Against CVBT
11
On September 10, 2018 four alleged creditors of CVBT filed an involuntary
12
petition against CVBT. CVBT filed a Motion to Dismiss based on CVBT’s allegation
13
14 that the creditors did not meet the qualifications to be petitioning creditors. Three more
15 alleged creditors were added as Petitioning Creditors.
16 This Court heard CVBT’s Motion to Dismiss and ordered the Petitioning Creditors
17 to file an amended petition by November 29, 2018 providing more detail about the
18 claimed alleged debts. The seven alleged creditors filed an Amended Petition and their 19
claims and claim deficiencies are discussed below.
20
F. The Dan Montano Meddling
21
22 Debtor in case number 13-16289 is up to his eyeballs in meddling in this case. Mr.
23 Riggi admitted that he represents Montano's spouse Viktoriya Montano. [J. Luell deposition
24 page 6, line 15 through page 7, line 2, lines 10 – 15]. Mr. Riggi also admitted that Dan
25 - 5 -

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1 Montano is one of his “co-clients.” [Laub deposition transcript, page 7, lines 22-24].
2 Mr. Riggi claimed privilege with respect to discussions between petitioning
3 creditors and Viktoriya Montano and also claimed discussions between petitioning 4
creditors and Dan Montano were protected from disclosure by joint party and spousal
5
privilege. [J. Luell deposition transcript, page 7, lines 8 – 12].
6
7 Ms. J. Luell also admitted that Viktoria Montano (Dan Montano’s spouse) paid
8 Mr. Riggi to represent Ms. Luell in this case. [J. Luell deposition transcript, page 39, line
9 8 through page 40, line 1].
10 Ms. Yvonne Luell testified that she knew Vika Montano had paid Mr. Riggi’s fee,
11 but contends she paid Vika Montano $1,000. When asked whether Vika Montano asked 12
Ms. Yvonne Luell for payment Mr. Riggi asserted joint client privilege. [Yvonne Luell
13
14 deposition transcript, Appendix III, page 6, lines 10 – 20, page 27, lines 21 - 25].
15 Petitioning creditor Regenerative Medicine Organization, though its designated
16 representative John Laub, testified that Vika Montano was part of the “petitioning
17 group.” [Appendix II, Laub deposition transcript page 6, lines 7 – 18].
18 An on the record discussion regarding spousal privilege with Mr. Riggi took place. 19
That discussion includes the following interpretation of the privilege by Mr. Riggi as
20
follows,
21
22 There is a multiparty privilege, which is shared among my clients. And that means that none of the clients can divulge any discussions they've had
23
24
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1 Among each other. And that does include Vika Montano, and it does include Mr. Laub today. Now, they've asserted -- when I say "they," I
2 mean Daniel and Vika -- they've asserted a spousal privilege and a spousal
3 immunity.
4 [Laub deposition transcript page 7, line 5 through page 9, line 21].
5 Mr. Laub also testified that he and Mr. Montano have a plan to develop a network
6 of people around the world who believe in Zhittya’s drugs. [Laub deposition, page 20, 7
line 8 though line 19].
8
Mr. Laub also testified with respect to the substance FGF-1 that Zhittya
9
10 Regenerative Medicine, a company in which Dan Montano is involved, is exploring a lot
11 of indications for use of FGF-1. FGF-1 medical uses were and is the primary business of
12 CVBT. [Wallen Affidavit, para 16]. The pending arbitration proceeding by CVBT
13 against Dan Montano and Zhittya Regenerative Medicine, Inc. focuses on the Laub and
14 Montano misappropriation of CVBT’s intellectual property associated with FGF-1. 15
When Mr. Laub was asked where the Zhittya entities obtained the books and records to
16
start investigating the use of FGF-1 his response was “I’m not clear.” [Laub deposition
17
18 transcript page 23, line 22 through page 24, line 2].
19 II. CLAIMS ARE SUBJECT TO A BONA FIDE DISPUTE IF THE DEBTOR CLAIMS THEY ARE BARRED BY LIMITATIONS
20
21 If the supporting debt of a petitioning creditor is subject to a bona fide claim that it
22 is barred by limitations that creditor is not eligible to be a petitioning creditor. In re
23 Vortex Fishing Systems, 277 F.3d 1057, 1069 (9th Cir. 2001). 24
25 - 7 -

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1 The 9th Circuit concluded at page 1069,
2 … the claims of Vortex Lures and Higgins would be barred by the
3 statute of limitations and [consequently] subject to a bona fide dispute.
4
(copy of opinion attached).
5
Last spring CVBT, via Bob Schleizer, a CVBT director, requested a legal opinion
6
7 with respect to which claims that arose while Montano was in control were barred by
8 limitations. His request was sent to Mary Chapman, a Nevada employment law attorney.
9 Ms. Chapman’s May 4, 2018 opinion was that all employees’ claims other than
10 Yvonne Luell and Joy Marisco were time barred prior to May 4, 2018 and that Yvonne’s
11 claims would become time barred on May 21, 2018. 12
Ms. Chapman further noted that under Nevada law an employee can only seek
13
14 recovery for unpaid claims within three years of the date they file a lawsuit or other legal
15 proceeding and accordingly liability to a terminated employee “decreases daily.”
16 Ms. Chapman further opined that there is no contractual right of board members to
17 board fees and director’s fees should be removed from the Company’s books.
18 A copy of Ms. Chapman’s legal opinion is attached as Exhibit 4 and Mr. Wallen 19
affirms that CVBT relied on her opinion in concluding that the claims of the
20
petitioning creditors Judith Luell, Yvonne Luell, are subject to bona fide disputes as to
21
22 liability and amount. [Wallen Affidavit, para 14].
23 In support of this Motion CVBT also relies on the attached: (i) affidavits of its
24 Chief Executive Officer Calvin A. Wallen, III (“Wallen”), Lawrence R. Myerson, PhD., 25 - 8 -

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1 CVBT’s Executive Vice-President for Research and Development, and (ii) Declaration of
2 its president Michael Flaa and exhibits attached to and referenced in those affidavits.
3 III. THE CLAIMS OF THE SEVEN PETITIONING CREDITORS ASSERTED IN
4 THE AMENDED PETITION ARE ALL SUBJECT TO BONA FIDE DISPUTE INCLUDING CVBT’S DEFENSE THAT THEY ARE BARRED BY APPLICABLE
5 STATUTES OF LIMITATIONS
6 1. Petitioning Creditor Judith Luell
7 (Amended Petition D.E. 76, pages 16 – 29)
8 Judith Luell contends she is owed $670,000. [D.E. 76, page 17].
9 As support for her claim is an unauthenticated, cryptic spreadsheet. (see D.E. 76, 10 pages 19 - 28).
11
Ms. Judith Luell made no effort to explain that spreadsheet. It is obviously not
12
prepared by CVBT since there is claimed interest owed through July 2018. Ms. Luell
13
14 does not include any documents chargeable against CVBT to support her claim.
15 Ms. Judith Luell does not provide any written consulting agreement or any
16 evidence she ever filed a lawsuit or other proceeding to toll limitations.
17 CVBT disputes that she was ever entitled to compensation beyond 2012 and that
18 this is supported by the May 4, 2018 Chapman legal opinion. CVBT disputes that it owed 19
this petitioning creditor any money. [Flaa Affidavit, para 10]. Ms. Judith Luell was
20
terminated in 2012 from her employment with CVBT for failing to report to work or
21
22 otherwise notify CVBT for three consecutive days in accordance with its written policies
23 and for theft of CVBT files. [Mike Flaa Declaration, page 3, paragraphs 10 and 11 and
24 page 4, paragraphs 12 and 13 and Flaa Exhibit 2].
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1 2. Petitioning Creditor Yvonne Luell a/k/a Yvonne Johnson-Luell
(Amended Petition D.E. 76, pages 16, 30 - 40)
2
3 Yvonne Luell contends she is owed $518,312.00. [D.E. 76, page 17].
4 As support for her claim is an unauthenticated, cryptic spreadsheet. (see D.E. 76, 5 pages 30-40).
6 Ms. Luell made no effort to explain that spreadsheet. It is obviously not prepared
7
by CVBT since there is claimed interest owed through July 2018. Ms. Luell does not
8
include any documents chargeable against CVBT to support her claim.
9
10 Ms. Luell does not provide any written consulting agreement or any evidence she
11 ever filed a lawsuit or other proceeding to toll limitations. CVBT disputes that she was
12 ever entitled to compensation beyond 2012.
13 CVBT disputes that she was ever entitled to compensation beyond 2012 and that
14 this is supported by the May 4, 2018 Chapman legal opinion. CVBT disputes that it owed 15
this petitioning creditor any money. [Flaa Affidavit, para 10]. Ms. Judith Luell was
16
terminated in 2012 from her employment with CVBT for failing to report to work or
17
18 otherwise notify CVBT for three consecutive days in accordance with its written policies.
19 [Mike Flaa Declaration, page 2, paragraph 5 and and page 3, paragraph 7 and Flaa Exhibit 20 2].
21 3. Petitioning Creditor Regenerative Medicine Organization (“RMO”)
22 (Amended Petition D.E. 76, pages 41 – 53)
23 RMO claims it is owed approximately $415,000. Its claim is supported by the 24
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1 Declaration of John K. Laub, Executive Director. It is undisputed that RMO forfeited its
2 charter before September 10, 2018. As support for its claim for consulting services is an
3 unauthenticated, cryptic spreadsheet. (see D.E. 76, pages 45 - 53). 4
RMO made no effort to explain that spreadsheet. It is obviously not prepared by
5
6 CVBT since there is claimed interest owed through July 2018. RMO does not include
7 any documents chargeable against CVBT to support its claim.
8 RMO does not provide any written consulting agreement or any evidence it ever
9 filed a lawsuit or other proceeding to toll limitations. CVBT disputes that it was ever
10 entitled to compensation beyond 2012 and that any claim for compensation is time barred 11
by limitations.
12
The attached Declaration of Mike Flaa evidences in paragraph 18 that RMO is not
13
14 owed any money by CVBT. Moreover, Mr. Flaa, as a director of RMO testifies in his
15 Declaration at paragraph 20 that his opinion is that RMO’s joinder as a petitioning
16 creditor is an unauthorized act of RMO.
17 CVBT notes that the spreadsheet on which RMO relies uses the term “contrib.”
18 CVBT did make some financial contributions to RMO as a non-profit company. 19
4. Petitioning Creditor Judith Pelton
20 (Amended Petition D.E. 76, pages 3 -15)
21 Ms. Pelton claims she is owed fees and expenses of $329,996.00 for the period
22 October 24, 2008 through 4/1/2013. The sole document she provides to support her claim 23
24
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1 is an unauthenticated, cryptic spreadsheet supporting her claiming she was a “consultant” 2 (see D.E. 76, page 7 of 84).
3 Ms. Pelton made no effort to explain that spreadsheet. It is obviously not prepared
4
by CVBT since there is claimed interest owed through July 2018. Ms. Pelton does not
5
6 include any documents chargeable against CVBT to support her claim.
7 Ms. Pelton does not provide any written consulting agreement or any evidence she
8 ever filed a lawsuit or other proceeding to toll limitations.
9 Montano’s sworn statement of affairs (13-16289-gs, D.E. 11, page 33, states Ms.
10 Pelton funded his Chapter 7. 11
CVBT disputes that she was ever entitled to compensation beyond 2012.
12
5. Petitioning Creditor Joong-Ki Baik
13 (Amended Petition D.E. 76, pages 53 – 65)
14 Mr. Baik contends he is owed director’s fees for the time period between 15
November 19, 2007 and June 17, 2009. As support for his claim is an unauthenticated,
16
cryptic spreadsheet. (see D.E. 76, pages 56 - 65).
17
18 He made no effort to explain that spreadsheet. It is obviously not prepared by
19 CVBT since there is claimed interest owed through July 2018. Mr. Baik does not include
20 any documents chargeable against CVBT to support his claim.
21 Mr. Baik does not provide any written consulting agreement or any evidence he
22 ever filed a lawsuit or other proceeding to toll limitations. CVBT disputes that he was 23
ever entitled to compensation beyond 2009. CVBT further contends his claims are time
24
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1 barred. This is supported by the May 4, 2018 Chapman legal opinion an opinion on which
2 CVBT relied. Mr. Flaa, as president of CVBT disputes Mr. Baik’s that he is owed money
3 by CVBT. [Flaa Declaration at paragraph 21]. 4
6. Petitioning Creditor Wolfgang Priemer
5 (Amended Petition D.E. 76, pages 66 – 78)
6 Mr. Priemer contends he is owed director’s fees for the time period between 7
September 1, 2007 and May 1, 2008.
8
As support for his claim is an unauthenticated, cryptic spreadsheet. (see D.E. 76,
9
10 pages 69 - 78).
11 He made no effort to explain that spreadsheet. It is obviously not prepared by
12 CVBT since there is claimed interest owed through July 2018. Mr. Priemer does not
13 include any documents chargeable against CVBT to support his claim.
14 Mr. Priemer does not provide any written consulting agreement or any evidence he 15
ever filed a lawsuit or other proceeding to toll limitations. CVBT disputes that he was
16
ever entitled to compensation beyond 2008 or 2009. CVBT further contends his claims
17
18 are time barred. This is supported by the May 4, 2018 Chapman legal opinion an opinion
19 on which CVBT relied and the Declaration of Mike Flaa at paragraphs 24 and 25.
20 7. Petitioning Creditor Kenneth Keiller
(Amended Petition D.E. 76, pages 80 - 84)
21
22 Mr. Keiller contends he is owed consulting fees of $250,000. Mr. Keiller does not
23 provide any documentation to support his claim and CVBT has no record of him ever 24
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1 having worked as a consultant. The claim totally lacks the detail required by this Court in
2 its deadline of November 29, 2018.
3 As support for his claim is an unauthenticated, two page cryptic spreadsheet. (see 4
D.E. 76, pages 83 - 84).
5
6 Mr. Keiller made no effort to explain that spreadsheet. It is obviously not prepared
7 by CVBT since there is claimed interest owed through July 2018. Mr. Keiller does not
8 include any documents chargeable against CVBT to support his claim.
9 This appears to be a blatantly false claim to which CVBT contends it has a bona
10 fide dispute. Indeed, CVBT’s president Mike Flaa contends that the claim is fraudulent. 11
[Flaa Declaration at paragraph 23].
12
IV. CVBT IS GENERALLY PAYING ITS DEBTS AS THEY BECOME DUE
13
14 All of the claims on which the Petitioning Creditors rely as evidence that CVBT is
15 not paying its debts as they generally become due are claims that arose prior to the proxy
16 orders attached as Exhibits 1 and 2, were at least 5 years old on the Petition Date of
17 September 10, 2018, are subject to bona fide disputes and are, on their face, barred by
18 applicable statutes of limitations. 19
As shown by the attached summary judgment evidence, all of CVBT’s obligations
20
for several years prior to the Petition Date were paid on or before the due date for
21
22 payment. [Attached Wallen affidavit, paragraph 11]. 23
24
25 - 14 -

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1 V. ALTERNATIVELY, IT IS IN THE BEST INTEREST OF THE CREDITORS AND THE DEBTOR TO DISMISS THE PETITION UNDER 11 U.S.C. 305(a)(1)
2
3 CVBT has been paying its debts as they generally have become due for at least
4 three continuous years prior to September 10, 2018, the date on which this case began.
5 The source of funds for that has been investor capital. [Wallen affidavit, para 11].
6 When the original petition was filed the CVBT board of directors ordered CVBT
7 to cease accepting further investor funds until this matter was resolved. At that point in 8
time CVBT was prepared to accept and had source further capital from existing and new
9
investors in the amount of $600,000 and reasonably anticipated sufficient funding to
10
11 continue pursuing its claims against Montano and his new “Zhittya” companies. [Wallen
12 affidavit at para 18].
13 Further, CVBT has several “payment” windows with respect to on-going clinical
14 trials that, if missed, will delay bringing its drugs to market by at least a year. These
15 include “payment” windows ending in January 2019 as shown in the attached Lawrence 16
R. Myerson, PhD affidavit. Dr. Myerson is CVBT's EVP for Research and Development.
17
18 Both of the Luell petitioning creditors hold significant stock in CVBT and their
19 position as petitioning creditors is against their legitimate personal best interests.
20 Accordingly, CVBT believes that Dan Montano (Mr. Riggi’s co-client) has promised
21 these two petitioning creditors benefits for the purpose of getting them to be petitioning
22 creditors. No petitioning creditor has been able to provide evidence that CVBT is not 23
currently paying or in the last three years has not paid its debts as they have become due.
24
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1 CVBT is currently paying and in the last three years has continually paid its debts as they
2 have become due.
3 CONCLUSION AND REQUEST FOR RELIEF
4
CVBT requests that after hearing this Court grant it summary judgment dismissing
5
6 the Involuntary Petition(s) and reserving for future hearing CVBT’s claims under 11
7 U.S.C. §303(i) for the following reasons:
8 (1). As a matter of law there are not three petitioning creditors who hold debts
9 owed by CVBT that are not subject to a bona fide dispute;
10 (2). As a matter of law, CVBT is not an eligible debtor under 11 U.S.C.§303 since 11
it is paying all of is undisputed debts as they generally become due and has done so since
12
2015; and
13
14 (3). As a matter of law this involuntary Chapter 7 was not filed by the Petitioning
15 Creditors for a legitimate purpose, but rather to be pawns of the Montano’s to slow down
16 arbitration proceedings against him and enable Montano to proceed with his plans for
17 Zhittya entities, entities that are subject to the claims of CVBT that it has misappropriated
18 CVBT’s intellectual property. 19
Signed December 10, 2018.
20
21
22
23
24
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Case 18-15410-gs Doc 80 Entered 12/11/18 19:54:58 Page 17 of 17






1 /s/Frank L. Broyles
2 Frank L. Broyles
3 TX Bar 03230500
222 W. Las Colinas Blvd.
4 1650 East Tower
Irving, TX 75039
5 [phone]
[e-mail]
6 Attorney for CardioVascular Biotherapeutics, Inc.
7
8
9
10 CERTIFICATE OF SERVICE
11 I hereby certify that on December 10, 2018 I caused to be served a true and correct
12 copy of the Alleged Debtor’s Amended Motion for Summary Judgment and Alternative
13 Relief including all referenced attachments in the following manner:
14 [X] a. Electronic Service 15
Under Administrative Order 02-1 (Rev. 8-31-04) of the United States Bankruptcy Court
16
for the District of Nevada, the above-referenced document was electronically filed on the
17
18 date hereof and served through the Notice of Electronic Filing automatically generated by
19 that Court’s facilities.
20 I declare under penalty of perjury that the foregoing is true and correct.
21 Signed: December 10, 2018.
22 /s/Frank L. Broyles.
23 Frank L. Broyles
24
25 - 17 -








1
2
3 In re 4


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

CARDIOVASCULAR
5 BIOTHERAPEUTICS, INC.,
6 Alleged Debtor
7
8
9
10
11

Chapter 7
(INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)

12 EXHIBIT
13
CVBT 1
14
15 &
16
WALLEN 1
17
18
19
20
21
22
23
24
25

GRANTED I
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MICKAEL A. FLAA, )
)

Plaintiff,
v.

)
) C.A. No. 8632-VCG
)

DANIEL C. MONTANO, VIKTORIYA T. ) MONTANO, JOHN W. JACOBS, ERNEST )
C. MONTANO, ERNEST MONTANO III and ) JOONG KI BAIK, )
)


and

Defendants, )
)
)

CARDIOVASCULAR BIOTHERAPEUTICS, ) INC., )
)
Nominal Defendant. )

STIPULATED [PROPOSED] STATUS QUO ORDER
IT IS HEREBY ORDERED, for good cause shown, that pending resolution of the above-captioned action (the "Action") or further order of the Court:
1. The board of directors for Cardiovascular Biotherapeutics, Inc. (the "Company"), shall consist of Mickael A. Flaa, Grant Gordon, Calvin A. Wallen III, Jon Ross, and Robert Schleizer (the "Interim Board"), and the President and CFO shall be Mickael A. Flaa (the "Interim President").
2. Daniel C. Montano, Viktoriya T. Montano, John W. Jacobs, Ernest C. Montano, Ernest Montano III and Joong Ki Baik ("Defendants"), shall not (i) hold themselves out (collectively or individually) as current directors or officers of the


RLFI 8908877v. I





Company, or (ii) purport to take any action as purported directors or officers of the Company.
3. The Company shall not undertake any action outside the ordinary course of the Company's business, including, without limitation:
A. causing the dissolution, liquidation or winding up of the Company;

B. instituting any new legal proceedings, including without limitation, any proceedings in bankruptcy;
C. entering into any agreement with respect to a merger, tender offer, restructuring, or recapitalization;
D. indemnifying or advancing any fees or costs in connection with this
Action;

E. changing the capital structure of the Company in any way, including through (i) the issuance, cancellation, or splitting of securities (including, but not limited to, stock, bonds, warrants, and options), or (ii) alteration or modification of any stock ledger or stock list;
F. amending, modifying, or repealing the certificate of incorporation or bylaws of the Company; or
G. declaring any dividend or distribution with respect to the capital stock of the Company.



-2-

RLFt 8908877v.l





4. The Interim Board shall provide written notice (a "Paragraph 4 Notice") to Defendants at least 48 hours, not counting Saturdays, Sundays or holidays ("Notice Period"), prior to the Company taking any of the following actions:
A. engaging in, entering into, or agreeing to any transaction, contract or agreement the value of which exceeds $25,000;
B. amending, waiving or modifying any contract or agreement, the value of which exceeds $25,000;
C. replacing, removing, demoting or changing the terms of employment of any current officer or employee, or hiring any new employee with managerial responsibility;
D. incurring any new debt (e.g., establishing new lines of credit, loans, etc.) which exceeds, individually or in combination with related or similar debt $100,000 (not factoring in the transaction contemplated by paragraph 7); or
E. transferring, encumbering, exchanging, expending, pledging, loaning, or otherwise disposing of, directly or indirectly, any asset of the Company, the value of which exceeds $25,000.
5. During any Notice Period, if the Defendants provide the Interim Board, in good faith, with a written objection, including the factual basis for such objection, to any action contemplated by a Paragraph 4 Notice (a "Paragraph 5 Objection"), the Company shall not take the proposed action without (a) the prior written consent of the objecting

- 3 -
RLFI 8908877v.l





party, or (b) an order of the Court expressly permitting the proposed action. If the Defendants do not timely provide a Paragraph 5 Objection to any action contemplated by a Paragraph 4 Notice, then such action shall be deemed to be within the ordinary course of the Company's business for purposes of Paragraph 3 of this Order.
6. Any Paragraph 4 Notice or Paragraph 5 Objection shall be by email, using the following addresses: (a) for the Interim Board, to Calvin A. Wallen III ([e-mail]) and Mickael A. Flaa ([e-mail]), and (b) for the Defendants, to Daniel C. Montano ([e-mail]). All such notices shall copy Richard P. Rollo, Esq. ([e-mail]) and David Finger, Esq. ([e-mail]).
7. Notwithstanding any other provision in this Order, the Interim Board shall be permitted to (i) incur new debt, and (ii) encumber, pledge, or otherwise provide a security interest, directly or indirectly, in CVBT's rights under its November 22, 2010 License Agreement with Merck Sharp & Dhome Corp, to the extent necessary to pay the
$100,000 March 1, 2013, invoice from Merck Sharp & Dhome Corp; provided, however, that such transaction shall be on substantially similar terms to· the draft transaction agreements provided to defendants' counsel by email for review on July 10; 2013.
8. The parties shall not destroy any documents pertaining to the disputes at issue in this Action, the Company or Vizier Investment Capital Ltd.
9. The Defendants shall promptly, and no later than three (3) business days

-4-

RLFI 8908877v.1





from the date of this Order, return (or provide copies of) any and all Company documents and other property to the Company's offices at 9500 Hillwood Drive, Suite 200, Las Vegas, NV 89134. The foregoing includes, but is not limited to:
A. All final minutes of CVBT board or subcommittee meetings, and any notes and draft minutes for CVBT board or subcommittee meetings for which there are no final minutes;
B. All recordings of CVBT board meetings or any other CVBT
meeting;

C. For each CVBT bank account, any checkbooks, check stubs, check registers, bank statements, or bank reconciliations.
D. All correspondence with any banks regarding any CVBT bank accounts since June 2012.
E. All draft agreements or contracts involving CVBT since June 2012.

F. All documents (including emails) related to any employee actions taken since June 2012.
G. All contracts (including non-disclosure agreements) entered into on behalf of CVBT or related to CVBT since June 2012.
H. Any documents (including emails) related to any CVBT stock transactions entered into since June 2012.





I. Any documents (including emails) related to any debt transactions entered into since June 2012.
J. Any documents (including emails) related ·t o vendor matters and communication (new vendors, existing vendors, and cancelled vendors) since June 2012.
K. All correspondence with the FDA since January 1, 2013.

Any documents returned to the Company by the Defendants pursuant to this paragraph 9 shall be used by the Interim Board solely for the purpose of taking action inside the ordinary course of the Company's business, consistent with the terms of this Order, unless the Interim Board first obtains (a) the prior written consent of the Defendants, or (b) an order of the Court expressly permitting the proposed action.
10. Defendants shall promptly, and no later than three (3) business days from the date of this Order, change any and all mailing addresses for CVBT with third parties to CVBT's mailing address at 1930 Village Center Circle #3-625, Las Vegas, NV 89134.
11. The Defendants shall promptly, and no later than three (3) business days from the date of this Order, (i) identify any and all CVBT bank accounts, or containing CVBT funds and provide, and (ii) take the steps necessary to transfer control of those CVBT accounts and funds to the Interim President.
12. The restrictions imposed by this Order:

A. apply to the parties, and any other person(s) purporting to act on behalf of (or for the benefit of) the Company;





B. apply to all assets and funds of CVBT, irrespective of the bank account(s) the funds are contained in or the name in which the assets are titled; and
C. may be waived on a case-by-case basis by the written agreement of

(a) Richard P. Rollo, Esq. and (b) David Finger, Esq.

13. The Court may modify the restrictions imposed by this Order upon application of any party for good cause shown.

Vice Chancellor Glasscock














1
2
3 In re 4


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

CARDIOVASCULAR
5 BIOTHERAPEUTICS, INC.,
6 Alleged Debtor
7
8
9
10
11

Chapter 7
(INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)

12 EXHIBIT
13
CVBT 2
14
15 &
16
17 WALLEN 2
18
19
20
21
22
23
24
25
26




IN THE COURT OF CHA CERY OF THE STATE OF DELAWARE


MICKAEL A. FLAA,

Plaintiff

V.

DANIEL C. MONTANO, VIKTORIYA T. MONTANO, JOHN W. IA OB
ERNEST C. MO T 0 ERNESTMO TA JOONG KI BAIK,

Defendants,

and

CARDIOVAS ULAR BJOTHERAPEU ICS, INC.,

ominal Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER










C.A. o. 9146-V G


IT IS HER BY ORDERED, this 16th day of September, 2014, for the reasons stated in the Special Master's Final Report (Trans. ID 55967423· the "Report") and for good cause shown that:1
1. The decisions of the Special Master and the Report are hereby confirmed·

1 Unless otherwise defined, capitalized terms have the meanings set forth in the Report.




2. The duly-elected board of directors o CVB consists of Calvin A. Wallen III· Grant Gordon· Mickael A. Flaa; Jon S. Ross Esq.; Robert Schleizer; Alfred C. Moran; Robert (Wayne) Blackburn; and James R. Richards (the "New Board11
3. The N w Board was validly elected at the Annual Meeting.

4. othing in this order shall prejudice the Defendants' right to seek


recov ry of costs.

< I


,,
IL

The Hon. Sam Glasscock II








1
2
3 In re 4


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

CARDIOVASCULAR
5 BIOTHERAPEUTICS, INC.,
6 Alleged Debtor
7
8
9
10
11

Chapter 7
(INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)

12 EXHIBIT
13
CVBT 3
14
15 &
16
WALLEN 3
17
18
19
20
21
22
23
24
25
26





1 Timothy S. Cory (1972) Matthew L. Johnson (6004)
2 JOHNSON & GUBLER, P.C.
3 8831 West Sahara Avenue Las Vegas, NV 89117
4 Telephone [phone]
Facsimile [phone]
5 [e-mail]
Attorneys for Plaintiff
6 Cardiovascular Biotherapeutics, Inc.
7 ARBITRATION DEMAND
8

9 CARDIOVASCULAR BIOTHERAPEUTICS, INC.,
10

American Arbitration Case No. ----

11
vs.
12

Plaintiff,


COMPLAINT FOR BREACH OF CONTRACT,COPYRIGHT

13 DANIEL C. MONTANO, an individual, JOHN
W. JACOBS, an individual, ZHITTYA
14 REGENERATIVE MEDICINE, a Delaware Corporation,
15

INFRINGEMENT, THEFT OF TRADE SECRETS, CIVIL RICO VIOLATIONS, CIVIL CONSIPRACY, INJUNCTIVE AND OTHER RELIEF

Defendants.
16
17
18 Claimant CARDIOVASCULAR BIOTHERAPEUTICS, INC. ("Cardio"), for its Complaint
19 for Breach of Contract, Copyright Infringement, Theft of Trade Secrets, Civil RICO Violations, Civil
20 Conspiracy, Injunctive and Other Relief against Respondents DANIEL C. MONTANO ("Montano"),
21 JOHN W. JACOBS ("Jacobs") and ZHITTYA REGENERATIVE MEDICINE (collectively,
22 "Respondents''}, states as follows:
23 INTRODUCTION
24 Cardio requests this Arbitration Panel's (the "Panel") intervention to prevent Respondents from
25 continuing to execute their plan calculated to cause severe irreparable damage to Cardio through the 26 1




1 breach of express contractual provisions agreed to by Montano and Jacobs relating to their post­
2 employment activities and the actual, threatened and inevitable theft and dissemination of highly
3 confidential intellectual property rights, trade secrets, patents and copyright protected information
4 owned by Cardio ("Cardio Proprietary Information").
5 Cardio is a biopharmaceutical company focused on developing recombinant human fibroblast
6 growth factors in various drug candidates for cardiovascular diseases, treatment of chronic wounds and

7 diabetic conditions.

8 Montano was employed by Cardio as its President and Chief Executive Officer until his employment

9 was terminated September 16, 2014 after a lengthy shareholder fight. Jacobs was employed by Cardio

10 as its Chief Scientific Officer until his employment was terminated on September 16, 2014 after the
11 same a lengthy shareholder fight. In anticipation of their inevitable termination of employment with
12 Cardio, Montano and Jacobs formed Zhittya Regenerative Medicine, Inc. ("Zhittya") as a Delaware
13 corporation in June, 2014. Zhittya was formed by Montano and Jacobs for the express purpose of

14 stealing and utilizing Cardio Proprietary Information to compete with Cardio following Montano's
15 and Jacob's inevitable termination of employment with Cardio. At the time of termination of their
16 employment with Cardio, Montano and Jacobs were in possession of a significant amount of Cardio

17 Proprietary Information which they were required to return to Cardio under their Employee

18 Agreements (as defined below). Further, under Montano's and Jacobs' Employee Agreements,

19 Montano and Jacobs were required to preserve the confidentiality of any Cardio Proprietary

20 Information in their possession following the termination of his employment. Montano and Jacobs

21 were also prohibited under their Employment Agreements from using Cardio Proprietary Information
22 for personal gain or in competition with Cardio. Despite lawful demands from Cardio for the return
23 by Montano and Jacobs of the Cardio Proprietary Information in their possessions. Montano and

24 Jacobs have failed and refused to return such Confidential Proprietary Information to Cardio. 25
26 2






1 Montano and Jacobs have, accordingly, breached their contractual obligations under the
2 Employee Agreements which required Montano and Jacobs upon termination of their employment to
3 (i) return all Cardio property and Cardio Proprietary Information to Cardio, (ii) preserve the
4 confidentiality of the Cardio Proprietary Information and (iii) refrain from using Cardio Proprietary
5 Information to compete with Cardio or for personal gain (collectively, the ''Post..Employment
6 Obligations"). To the contrary, instead of returning all such Cardio Proprietary Information to Cardio
7 as required by their Employee Agreements, Montano and Jacobs are now engaging in a course of
8 conduct, in concert with others, in breach of their Employee Agreements, to misappropriate (steal)

9 Cardio Proprietary Information so that such proprietary information can be used in their newlycreated

10 company, Zhittya, to compete with Cardio for Montano's and Jacobs' personal benefit.
11 As noted above, as part of Montano's and Jacobs' unlawful scheme to misappropriate, steal and

12 disseminate Cardio Proprietary Information, Montano and Jacobs formed Zhittya in Delaware on June

13 30, 2014 and registered Zhittya to do business in Nevada on July 15, 2014. Zhittya was formed by

14 Montano and Jacobs for the sole purpose of unlawfully stealing Cardio Proprietary Information so that

15 such Cardio Proprietary Information could be used by Zhittya to unlawfully compete with Cardio.
16 Following its registration to do business in Nevada, Zhittya commenced publishing "white papers"
17 authored by Jacobs on the internet to promote Zhittya's "new business" in direct competition with

18 Cardio relating to the treatment of diabetic foot ulcers, venous ulcers, coronary heart disease and other

19 angiogenesis treatments which included copyright protected material exclusively owned by Cardio
20 (the "Infringed Materials"), as well as additional Cardio Proprietary Information which had been
21 taken, converted and/or misappropriated by Montano and Jacobs from Cardio.
22 This arbitration proceeding has additionally been instituted by Cardio for the purpose of, inter
23 alia, seeking a preliminary and permanent injunction against Montano, Jacobs and Zhittya requiring
24 Montano, Jacobs, Zhittya and all others acting in concert with them to immediately cease using and

25 publishing Cardio Proprietary Information for any purpose and to immediately return to Cardio all

26 3






1 Cardio Proprietary Infonnation and property in Respondents' possession, custody or control and for a
2 pennanent injunction requiring Montano, Jacobs, Zhittya and all others acting in concert with them to
3 pennanently cease using Cardio Proprietary Infonnation for any purpose. Cardio additionally seeks
4 monetary damages against Montano, Jacobs and Zhittya for breach of contract, theft of trade secrets,
5 civil RICO violations, civil conspiracy and copyright infringement.
6 NATURE OF THE ACTION
7 1. This is an action for breach of contract, copyright infringement, the theft of trade secrets,
8 civil RICO violations and civil conspiracy. Cardio seeks temporary, preliminary, and pennanent
9 injunctive relief in addition to monetary damages.
10 2. Until September 2014, Montano and Jacobs were employed as Officers of Cardio. In
11 their respective positions, Montano and Jacobs gained access to all Cardio Proprietary Infonnation,
12 including access to infonnation relating to patent applications, drug development processes, clinical
13 trials, marketing strategies and potential marketing and financial partners. This highly sensitive and
14 proprietary infonnation was made available to Montano and Jacobs as. a result of the investments of
15 millions of dollars by Cardio shareholders who mistakenly placed their trust in Montano and Jacobs to
16 honor their contract obligations and fiduciary duties to Cardio's shareholders to protect and develop
17 Cardio's invaluable intellectual property rights for the benefit of Cardio's shareholders.
18 3. During Montano's and Jacobs' employment with Cardio, they acquired copies of
19 substantially all of Cardio's Proprietary Infonnation and, following their tennination of employment
20 with Cardio, Montano and Jacobs, in breach of their Employee Agreements and in breach of their
21 fiduciary duties to the shareholders of Cardio have retained, and still possess, copies of all, or
22 substantially all, of such Cardio Proprietary Information, including a copy of the Merck Data (as
23 defined below), all of which Montano and Jacobs are now falsely claiming was developed and is owned
24 by Zhittya.
25

26 4





1 4. Based upon website postings by Zhittya and others, and the dissemination of plagiarized

2 "white papers" under Zhittya's name, it has become clear that Montano and Jacobs, in violation of their
3 Post-Employment Obligations, are actively utilizing Cardio Proprietary Information for his own
4 personal gain through their newly formed company, Zhittya, to develop and market FGF-1 human
5 protein applications paid for and developed by Cardio in direct competition with Cardio.
6 5. Upon information and belief, Montano and Jacobs are acting in concert with others who
7 are knowingly aiding and abetting Montano, Jacobs and Zhittya in violating their Post-Employment
8 Obligations and their theft of trade secrets from Cardio.
9 6. Accordingly, Cardio seeks to temporarily, preliminarily, and permanently enJom
10 Montano, Jacobs and Zhittya and all parties acting in concert with them from using or threatening to
11 use Cardio's confidential and/or trade secret information in any business or undertaking in competition
12 with Cardio. In addition, Cardio seeks to obtain an temporary, preliminary, and permaneg.t mandatory
13 injunction ordering Montano, Jacobs and Zhittya and all parties acting in concert with them to
14 immediately return to Cardio all tangible expressions of Cardio Proprietary Information in their
15 possession, custody or control.
16 7. Absent such injunctive relief, Cardio faces irreparable injury, including the loss of
17 markets for its biopharmaceutical business, its exclusive competitive advantage and its trade secrets and
18 goodwill in amounts which likely will be impossible to determine unless Montano, Jacobs, Zhittya and
19 all others acting in concert with them are enjoined and restrained by order of this Panel at once.
20
21
22
23
24
25

26 5

Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 7 of 21




1 PARTIES
2 8. CardioVascular BioTherapeutics, Inc. is a corporation organized and existing under the
3 laws of the State of Delaware, with its principal place of business in Dallas, Texas.
4 9. Respondent Daniel C. Montano is an individual who is domiciled and a resident of Las
5 Vegas, Nevada who regularly conducts business in Las Vegas, Nevada.
6 10. Respondent John W. Jacobs is an individual who is domiciled in and a resident of Las
7 Vegas, Nevada who has regularly conducted business in Las Vegas, Nevada.
8 11. Zhittya Regenerative Medicine, Inc. is a corporation organized and exists under the
9 laws of the State of Delaware with its principal office in the State of Nevada. Zhittya's registered
10 agent in Delaware is listed as Finger and Slanina, LLC, One Commerce Center, 1201 North Orange
11 Street, 7th Floor, Wilmington, Delaware 19801 and whose registered agent in Nevada is Demint
12 Law, PLLC, 3753 Howard Hughes Parkway, Suite 300-314, Las Vegas, Nevada 80168.
13 JURISDICTION AND VENUE
14 12. This Panel has jurisdiction and authority to administer and enforce the arbitration of the
15 claims asserted by Cardio against Respondent Montano in Clark County, Nevada under the provisions
16 of Paragraph 9 of the January 1, 2007 Employment Agreement between Cardio and Montano and the
17 Cardio Arbitration Policy acknowledged by Montano on May 23, 2007.
18 13. This Panel has jurisdiction and authority to administer and enforce the arbitration of the
19 claims asserted by Cardio against Respondent Jacobs in Clark County, Nevada (i) under the provisions
20 of Paragraph 9 of the January 1, 2007 Employment Agreement between Cardio and Jacobs, (ii) under
21 the provisions of Paragraph 21 of the March 1, 2010 Consulting Agreement between Cardio and Jacobs
22 and (iii) a February 19, 2015 Order from the United States District Court for the District of Nevada
23 compelling arbitration of Cardio's claims against Respondent Jacobs.
24 14. This Panel has jurisdiction and authority to administer and enforce the arbitration of the
25 claims asserted by Cardio against Respondent Zhittya in Clark County, Nevada because the chtims 26 6

- - - ·-·"· ·-- ··-·-···- - - - -
Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 8 of 21




1 against Montano, Jacobs and Zhittya are so intertwined and interdependent such that Zhitty is equitably
2 estopped from denying that it required to submit the claims asserted herein tothis Arbitration.
3 FACTUAL ALLEGATIONS
4 15. Cardio is a biopharmaceutical company developing protein drug candidates to address
5 diseases that result from lack of blood flow to a tissue or organ such as diabetic foot ulcers, severe
6 coronary microvascular disease and peripheral artery diseases ("Cardio's · Biopharmaceutical
7 Business"). The active pharmaceutical ingredient in Cardio's drug candidates is FGF-1, a human
8 protein that stimulates the growth of new blood vessels, thereby increasing the blood supply to ischemic
9 organs and tissues.
10 16. Montano was President and Chief Executive Officer of Cardio until September 16, 2014
11 when Cardio terminated Montano's role with Cardio as President and Chief Executive Officer. Prior to
12 his termination on September 16, 2014, Montano had entered into an Employment Agreement with
13 Cardio dated January 1, 2007 (the "Montano Employment Agreement'), a true and correct copy of
14 which is attached hereto as Exhibit "A". Montano's Employment Agreement imposed obligations upon
15 Montano to maintain the confidentiality of all Cardio Proprietary Information and to refrain from
16 utilizing any Cardio Proprietary Information to directly or indirectly compete with Cardio during or
17 following his employment with Cardio. Additionally, Montano agreed under the provisions of Section
18 6.2(b) of his Employment Agreement, that if Montano used any Cardio Proprietary Information other
19 than in connection with his employment with Cardio, any gain or profit derived by Montano as a result
20 of Montano's use of such Cardio Proprietary Information would be held in trust for the benefit of Cardio
21 and would be remitted by Montano to Cardio upon demand. Further, during Montano's employment
22 with Cardio, Montano was subject to an Employee (Contract) Confidential Information and Non­
23 Solicitation Agreement dated March 11, 1998 (the "Montano Confidential Information Agreement'),
24 a true and correct copy of which is attached hereto as Exhibit "B". Montano was additionally subject to " ·
25 a Code of Business Conduct (the "Code of Conduct'), a true and correct copy of which is attached 26
7

. . . . . ... ...........


Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 9 of 21




I hereto as Exhibit "C", and an Arbitration Policy, to which he agreed on May 23, 2007,a true and correct
2 copy of which is attached hereto as Exhibit "D". The Montano Confidential Information Agreement
3 and the Code of Conduct imposed additional obligations upon Montano to maintain the confidentiality
4 of all Cardio Proprietary Information and to refrain from utilizing any Cardio Proprietary Information
5 to directly or indirectly compete with Cardio during or following Montii.no's employment with Cardio.
6 The Montano Employment Agreement, the Montano Confidential Information Agreement, the Code of
7 Conduct and the Arbitration Policy are collectively referred to herein as the "Montano Employee
8 Agreements."

9 17. · Jacobs was Chief Scientific Officer and Chief Operating Officer of Cardio until
10 September 18, 2014 when Cardio terminated Jacobs' role with Cardio as Chief Scientific Officer and
11 Chief Operating Officer. Prior to his termination on September 16, 2014, Jacobs had enteredinto an
12 Employment Agreement with Cardio dated January 1, 2007 (the "Jacobs' EmploymentAgreemenf'),
13 a true and correct copy of which is attached hereto as Exhibit "E". Jacobs' Employment Agreement
14 imposed obligations upon Jacobs to maintain the confidentiality of all Cardio Proprietary Information
15 and to refrain from utilizing any Cardio Proprietary Information to directly or indirectly compete with
16 Cardio during or following his employment with Cardio. Additionally, Jacobs agreed under the
17 provisions of Section 6.2(b) of the Jacobs Employment Agreement that if Jacobs use any Cardio
18 Proprietary Information other thai;i in connection with his employment with Cardio, any gain or profit
19 derived by Jacobs as a result of Jacobs' use of such Cardio Proprietary Information would be held in
20 trust for the benefit ofCardio and would be remitted by Jacobs to Cardio or demand. Although Jacobs'
21 Employment Agreement was replaced by a Consulting Agreement between Jacobs and Cardio dated
22 March I, 2010 (the "Consulting Agreement'), a true and correct copy of which is attached hereto as
23 Exhibit "F", Jacobs continued to remain subject to the confidentiality and non-compete obligations
24 under his Employment Agreement. Jacobs was further subject to September 22, 2004 Employee
25 (Contract) Confidential Information and Non-Solicitation Agreement (the "Jacobs' Confidential

26 8



Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 10 of 21





1 Information Agreement") which prohibited Jacobs from using any Cardio Proprietary Information to
2 compete in any way with Cardio during or following his employment with Cardio, a true and correct
3 copy of which is attached hereto as Exhibit G. Further, during Jacobs' employment with Cardio, Jacobs
4 was subject to the same Code of Business Conduct which was applicable to Montano, a copy of which
5 is attached hereto as Exhibit "C". The Jacobs' Employment Agreement, the Consulting Agreement,
6 Jacobs' Confidential Information Agreement and the Code of Conduct are collectively referred to herein

7 as the "Jacobs' Employee Agreements.'')
8 18. Montano's Employment Agreements and Jacobs' Employee Agreements (collectively,

9 the "Employment Agreements"), which were in effect when Montano and Jacobs were terminated on
10 September 16, 2014, contained reasonable post-employment obligations relating to (1) the
11 confidentiality of Cardio Proprietary Information, (2) the return of all tangible expressions of Cardio
12 Proprietary Information and all other Cardio property and (3) Montano's and Jacobs' obligations to

13 refrain from using Cardio Proprietary Information for personal financial gain or to compete with Cardio

14 (collectively, the "Post-Employment Obligation").
15 19. During the periods of time Montano and Jacobs were employed by Cardio and were
16 subject to the terms of their Employee Agreements, Montano and Jacobs had access to and came into

17 possession of valuable Cardio Proprietary Information, including confidential and proprietary
18 information relating to Cardio's intellectual property rights, trade secrets, clinical drug trials, important

19 strategic information about Cardio's business and marketing plans and strategies and copyright
20 protected original works of authorship published in writing by Cardio. Montano's and Jacobs' access to

21 Cardio Proprietary Information included access to confidential FDA clinical trials exclusively licensed
22 to Cardio by Merck Sharp and Dome dated November 22, 2010 (the"Merck Data"). A true and correct
23 copy of Cardio's License Agreement with Merck Sharp & Dome Corp. (the "Merck License") is
24 attached hereto as Exhibit "H".
25

26 9






1 20. Following a lengthy shareholder fight for control of Cardio, Montano and Jacobs were
2 terminated from all positions they held as employees, officers and directors of Cardio on September 18,
3 2014. Immediately following their termination, demands were made upon Montano and Jacobs to
4 comply with their Post-Employment Obligations to immediately (1) return to Cardio all tangible
5 expressions of Cardio Proprietary Information and all other Cardio property and (2) refrain from
6 disclosing or utilizing any Cardio Proprietary Information, either individually or in conjunction with
7 others, to directly or indirectly compete with Cardio. True and correct copies of Cardio's demands to
8 Montano and Jacobs are attached hereto as Exhibit "I" and Exhibit "J".
9 21. Despite Cardio's demands to Montano and Jacobs for a return of all tangible expressions
10 of Cardio Proprietary Information following their termination of employment with Cardio, Montano and

11 Jacobs have failed and refused to return any Cardio Proprietary Information to Cardio.

12 22. Instead, pursuant to a scheme devised by Montano and Jacobs while still employed by

13 Cardio, following Montano and Jacobs' termination of employment, Montano and Jacobs began to

14 actively pursue a course of action in which they utilized Cardio Proprietary Information, in violation of

15 their Post-Employment Obligations under the Employee Agreements, to form and participate in Zhittya

16 for the purpose of competing with Cardio utilizing (stealing) Cardio Proprietary Information.

17 23. Following Montano and Jacobs' formation of Zhittya, Zhittya published a number of

18 "white papers" on the internet authored by Jacobs promoting Zhittya's activities in direct competition

19 with Cardio (the "White Papers"). A true and correct listing of these White Papers is attached hereto
20 as Exhibit K.
21 24. Further, Daniel M. Montano, a co-founder of Zhittya along with Jacobs, has published

22 statements on the internet that Zhittya will disseminate the White Papers to anyone who requests a copy.

23 See Exhibit "K" attached hereto.

24 25. Zhittya's White Papers includes wholesale reproductions of the original works of
25 authorship by Cardio subject to protection under U.S. copyright laws. 26 10





1 26. Provisions of Cardio's original works of authorship, subject to protection under U.S.
2 copyright laws, have been reproduced by Montano, Jacobs and Zhittya in violation of copyright laws
3 and reprinted in the White Papers.
4 27. Since their termination of employment with Cardio, Montano and Jacob, through their
5 newly formed company Zhittya have engaged in a continuous course of activity of fraudulently
6 representing that they, individually, have expended over $130 Million Dollars over thirty (30) years of
7 biological research and clinical trials to advance the treatments described in Zhittya's White Papers
8 claiming that Zhittya has the right to develop and market the treatment processes described the White
9 Papers, when, in fact, the intellectual property rights that are the basis of those treatments were
10 developed by and are owned by Cardio. Montano and Jacobs are falsely claiming that Zhittya is the
11 owner of all of Cardio's Proprietary Information and is using such false claims to commit securities
12 fraud, mail fraud, wire fraud, theft of trade secrets and infringement of copyright laws to attempt to raise
13 money from unsuspecting investors in a fraudulent course of action in which Montano and Jacobs falsely
14 represent ownership rights to potential treatment procedures which they are contractually and legally
15 prohibited from marketing in competition with Cardio.
16 28. If Montano, Jacobs and Zhittya .are not immediately enjoined from violating their Post
17 Employment Obligations, the knowledge and information that these parties possess and are disclosing
18 to third parties will enable investors in the newly formed Zhittya to save millions of dollars in start-up
19 costs and erode Cardio's trade secrets, confidential and proprietary business information, and
20 prospective investor relationships and goodwill.
21 29. Absent immediate intervention by this Panel, Cardio expects Montano's, Jacobs' and
22 Zhittya's activities in violation of their Post-Employment Obligations to result in an irreparable damage
23 to Cardio as a result of Montano's, Jacobs' and Zhittya' s misappropriation of Cardio's years of extensive
24 research, clinical trials and invaluable FDA trial data exclusively licensed to Cardio. 25
26 11

-·-··- - - - - -

Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 13 of 21





1 30. Cardio's confidential and proprietary information is not generally available to the
2 public, is of great value to Cardio and would give any of its competitors who acquired such
3 information, including Montano, Jacobs and those acting in concert with him, an unfair competitive
4 advantage.
5 31. Cardio had and has processes and procedures in place to rigorously maintain the
6 confidentiality of the Cardio Proprietary Information because .such information provides Cardio a
7 competitive advantage in the marketplace from which Cardio derives substantial economic value.
8 · 32. Montano' s and Jacobs's post-employment breaches of contract, misappropriation of
9 trade secrets and improper use of Cardio Proprietary Information in competition with Cardio is
10 irreparably harming Cardio and poses an immediate and ongoing threat to Cardio's biopharmaceutical
11 business, its intellectual property rights and trade secrets that must be enjoined because Cardio has no
12 adequate remedy at law.
13 33. Cardio' s trade secrets and confidential and proprietary information are of great value to
14 Cardio and would give any competitor of Cardio-including Montano, Jacobs and Zhittya and those
15 acting in concert with them-an unfair competitive advantage. Specifically, Cardio's trade secrets and
16 other proprietary information are of great value to Cardio and such information would give any
17 competitor, who improperly acquired such information, an unfair competitive advantage by: not
18 expending the time and resources to develop the trade secret and confidential and proprietary
19 information as Cardio has done; quickly developing products and technologies to unfairly compete
20 with Cardio in order to diminish Cardio's head start; alerting a competitor as to initiatives that should
21 not be pursued; an other improper advantages.
22 34. All told, Montano, Jacobs and Zhittya and those acting in concert with them are causing,
23 threatening, and/or will continue to cause or threaten significant irreparable harm to Cardio, including
24 the loss of value of confidential and/or proprietary information, the loss of long-standing prospective 25
26 12



Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 14 of 21

-·..···- ·-- ··- - -






1 investor relationships, loss of goodwill, as well as damage to Cardio's reputation as an industry leader
2 and its ability to successfully market its drug applications. Money alone cannot make Cardio whole.
3 COUNTI
4 BREACH OF CONTRACT
5 35. Cardio hereby repeats, realleges, and incorporates by reference the allegations which
6 are contained in Paragraphs I through 34.
7 36. The Employee Agreements that Montano and Jacobs entered into with Cardioconstitute
8 valid and enforceable contracts.
9 37. Cardio performed all of the duties and obligations it legally owes to Montano and Jacobs
10 under the Employee Agreements.
11 38. The Post Employment Obligations and activity restrictions contained in the Employee
12 Agreements are reasonable in both scope and duration, and are necessary to protect Cardio's legitimate -
13 protectable interests in its confidential business information, as wen as its business relaticmships,
14 goodwill and other legitimate business interests.
15 39. Montano and Jacobs breached, and continue to breach, then Post Employment
16 Obligations to Cardio by failing and refusing to return all tangible expressions of Cardio- Proprietary
17 Information in their possession following their termination of employment and by using, in concert
18 with others, such Cardio Proprietary Information to form and utilize Zhittya and possibly other
19 companies to compete with Cardio.
20 40. As a result ofMontano's and Jacobs's breaches of their Employee Agreements, Cardio
21 has been irreparably injured, and it continues to face irreparable injury. Cardio is threatened with losing
22 the value of its confidential and proprietary information and valuable business opportunities, along
23 with income and goodwill, for which a remedy at law is inadequate.
24 41. Accordingly, Montano, Jacobs and Zhittya and others acting in concert with them,
25 must be enjoined and restrained by Order of this Panel. To the extent a remedy at equity is

26 13






1 inadequate, Cardio seeks actual, incidental, compensatory, punitive and consequential damages,
2 along with its reasonable attorneys' fees and interest.
3 42. Cardio is also entitled to recover from Montano and Jacobs' and any profits attributable
4 to their use of Cardio Confidential Proprietary Information in competition with Cardio in violation of
5 their Employee Agreements.
6 COUNT II
7 VIOLATION OF COPYRIGHT LAWS

8 43. Cardio hereby repeats, realleging and incorporates by reference the allegations which
9 are contained in paragraphs 1 through 42.
10 44. Through their conduct as set forth herein, Montano, Jacobs and Zhittya have infringed
11 upon Cardio's copyrights in the Infringed Materials in violation of Sections 106 and 501 of the
12 Copyright, 17 U.S.C. §§ 106 and 501.
13 45. Montano's, Jacobs' and Zhittya's acts ofinfringement are willful, purposeful, in reckless
14 disregard and with knowledge of Cardio's rights.
15 46. As a direct and proximate result of said infringement by Jacobs, Cardio is entitled to
16 damages in an amount to be proven at trial.
17 47. Cardio is also entitled to Montano's, Jacobs' and Zhittya's profits attributable to the
18 infringement, pursuant to 17 U.S.C. § 504(b), including an accounting of and a constructive trust with
19 respect to any profits attributable to Zhittya's unlawful use of Cardio Proprietary Information.
20 48. Cardio further is entitled to its attorneys' fees and full costs pursuant to 17 U.S.C. § 505
21 and otherwise according to law.
22 49. As a direct and proximate result of the foregoing acts and conduct, Cardio has sustained
23 and will continue to sustain substantial, immediate and irreparable injury, for which there is no
24 adequate remedy at law. Cardio is informed and believes and on that basis avers that unless enjoined
25 and restrained by this Panel, Montano, Jacobs and Zhittya will continue to infringe Cardio's rights in

26 14






I the Infringed Material. Cardio is entitled to preliminary and permanent injunctive relief to restrain and
2 enjoin Jacobs' continuing infringing conduct.
3 COUNT III
4 ACTUAL MISAPPROPRIATION OF TRADE SECRETS
5 (NEVADA UNIFORM TRADE SECRET ACT, NRS §600A.010, ET SEQ.)
6 50. Cardio hereby repeats, realleges, and incorporates by reference the allegations which
7 are contained in Paragraphs 1 through 49.
8 51. Cardio's Proprietary Information includes, inter alia, information relating to Cru:dio' s to
9 patent applications, drug development processes, clinical trials, marketing strategies, Cardio's investors,
10 potential marketing and financial partners and access to the Merck Data.
11 52. This information constitutes trade secrets, pursuant to the Nevada Uniform Trade Secret
12 Act, NRS 600A.10, et seq., because Cardio derives independent economic value from this information
13 not being generally known to the public and not being readily ascertainable by proper means by other
14 persons who could obtain economic value from its disclosure or use, and because the information is
15 the subject of reasonable efforts to maintain its secrecy.
16 53. Montano, Jacobs and Zhittya have misappropriated Cardio's trade secrets without
17 Cardio's consent, in violation of Nevada law. Montano, Jacobs and Zhittya cannot participate in the
18 formation of companies in competition with Cardio utilizing and disclosing Cardio's confidential
19 information.
20 54. Montano, Jacobs and Zhittya and those acting in concert with them will be or are being
21 unjustly enriched by the misappropriation of Cardio's trade secrets and/or confidential information,
22 and, unless restrained, will continue to threaten to use, actually use, divulge, inevitably disclose, acquire
23 and/or otherwise misappropriate Cardio's trade secrets and confidential information.
24 55. Upon information and belief, Montano's, Jacobs' and Zhittya' s actual and/or threatened

25 misappropriation has been willful and malicious.

26 15

- - - - - - - - - - ··- - ··- - - - - - - - - - -

Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 17 of 21





1 56. As a result of the threatened and/or actual misappropriation of Cardio's trade secrets,

2 Cardio has been injured and faces irreparable injury. Cardio is threatened with losing financial partners,

3 its trade secrets and goodwill in amounts which will be impossible to determine, unless Jacobs and those
4 acting in concert with him are permanently enjoined and restrained by order of this Court.

5 COUNTIV
6 VIOLATION OF FEDERAL RICO STATUTES
7 57. Cardio hereby incorporates and re-allege the above paragraphs as if set forth fully
8 herein.
9 58. Cardio brings a claim for violation of the federal Racketeer Influenced and Corrupt
10 Organizations Act ("RICO") pursuant to 18 U.S.C. § 1962(c) against Respondents Montano, Jacob and
11 others acting in concert with them who have engaged in a pattern of thefts of trade secrets and the
12 publishing fraudulent and false statements and plagiarized materials other misrepresentations through

13 wire and mail fraud with the intent to defraud Cardio of its ability to generate business profits and
14 prevent Cardio's potential customers from purchasing and using Cardio's products which are in the
15 process of being brought to market. Cardio has suffered and continues to suffer monetary damages as

16 a result ofMontano's and Jacobs' racketeering activity. As a result ofMontano's and Jacobs' violation

17 of RICO, Cardio is entitled to recover treble damages caused by Montano and Jacobs to Cardio's

18 business plus costs of suit and attorneys' fees.

19 COUNTV
20 MISAPPROPRIATION OF TRADE SECRETS
21 59. Cardio hereby incorporates and re-alleges the above paragraphs as if set forth fully
22 herein.
23
24
25

26 16

Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 18 of 21




60. Cardio brings a claim for misappropriation of trade secrets under 18 U.S. Code§ 1836.
2 Montano, Jacobs and Zhittya have maliciously engaged in the misappropriation of trade secrets
3 lawfully owned by Cardio during the period of time from May 11, 2016 to the present.
4 61. As a result of Montano's, Jacob's and Zhittya's malicious actions in the misappropriation
5 of Cardio's trade secrets, Cardio is entitled to recover from Montano, Jacobs and Zhittya actual
6 damages, punitive damages and recovery of any unjust enrichment realized by Montano, Jacobs and
7 Zhittya as a result of Montana's, Jacob's and Zhittya's misappropriation of Cardio's trade secrets along
8 with a recovery of Cardio's reasonable attorney's fees incurred in pursuing its claims against Montano,
9 Jacobs and Zhittya.


10
11
12
13 herein.
14





62.


63.

COUNT VI CIVIL CONSPIRACY
Cardio hereby incorporates and re-allege the above paragraphs as if set forth fully


Cardio brings a claim for civil conspiracy against Montano and Jacobs. Montano and


15 Jacobs conspired to accomplish unlawful objectives against Cardio, specifically thefts of trade secrets
16 and breaches of contractual obligations to protect and preserve proprietary confidential information
17 relating to Cardio, its intellectual property rights and trade secrets. Montano and Jacobs acted in
18 concert to deliberately deprive Cardio of its valuable property rights as more particularly described
19 above and Cardio is entitled to recover from Montano and Jacobs the damages it has suffered as a result
20 thereof.
21 PRAYER FOR RELIEF
22 WHEREFORE, Cardio seeks judgment in its favor and an Order against Montano, Jacobs and
23 Zhittya that grants the following relief:
24
25

26 17

··- · -· ..-· · ·-· ·- _ ......
Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 19 of 21

···-- ····- -- - - -






A Temporarily, preliminarily, and permanently enjoining Respondents Montano, Jacobs
2 and Zhittya and all parties in active concert or participation with them, from using or disclosing any
3 of Cardio's confidential, proprietary and/or trade secret information;
4 B. Temporarily, preliminarily, and permanently enjoining Respondents Montano, Jacobs
5 and Zhittya and all parties in active concert or participation with them, from directly or indirectly
6 engaging in any business in competition with Cardio which utilizes any of Cardio's confidential,
7 proprietary and/or trade secret information.
8 C Orders Respondents Montano, Jacobs and Zhittya and all parties in active concert or
9 participation with him to return to Cardio all originals and copies of all files, devices and/or documents
10 that contain or relate to Cardio's confidential and proprietary information, including without
11 limitation, all computers, electronic media, PDA's and electronic storage devices;
12 D. Awards Cardio actual, incidental, compensatory, treble and consequential damages to
13 be proven at trial;
14 E Awards Cardio exemplary or punitive damages in an amount to be proven at trial due
''

15 to Montano's and Jacobs' willful and malicious activities;
16 F. Awards Cardio its costs and expenses incurred herein, including reasonable attorneys'
17 fees and interest, pursuant to NRS 600A.060;
18 G Awards Cardio damages in the amount of any and all unjust enrichment realized
19 by Montano, Jacobs and Zhittya as a result of then unlawful use of Cardio's confidential,
20 proprietary and/or trade secret information; and 21
22
23
24
25

26 18

Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 20 of 21




1 H Awards Cardio such further relief as the Panel deems necessary and just.

2 DATED: July 19, 2018
3 Respectfully submitted.
4 JOHNSON & GUBLER, P.C.
5


6
7
8
9
Of Counsel:
10

By: Isl Timothy S.. Cory Timothy S. Cory, Esq. Matthew L. Johnson, Esq. 8831 West Sahara Avenue Las Vegas, Nevada 89117 Attorneys for Plaintiff
CardioVascular BioTherapeutics, Inc.

Barry F. Cannaday (Application to be applied for)
11 DENTONS US LLP 2000 McKinney Ave
12 Suite 1900
Dallas, Texas 75201
13 Telephone: [phone]
Facsimile: [phone]
14
Michele A. Ratcliffe (Application to be applied for)
15 Lambert Ratcliffe Covington PLLC
16 1010 W. Ralph Hall, pt Floor Rockwall, Texas 75032
17 Telephone: [phone]
Fax: [phone]
18
19
20
21
22
23
24
25

26 19

Case 18-15410-gs Doc 80-3 Entered 12/11/18 19:54:58 Page 21 of 21




1 CERTIFICATE OF SERVICE
2 I certify that a true and correct copy of this Demand for Arbitration has been served, via e-mail
3 and Regular and Certified Mail, Return Receipt Requested on the 19th day of July , 2018 as follows:
4 Respondent Address E-Mail
Daniel C. Montano 3017 Carbondale Street [e-mail]
5 Las Vegas, NV 89135


6 John W. Jacobs 7
8 Zhittya Regenerative
Medicine, Inc.,
9 c/o John W. Jacobs

IO

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

26

3017 Carbondale Street Las Vegas, NV89135

3017 Carbondale Street Las Vegas, NV 89135




























20

[e-mail]


[e-mail]








1
2
3 In re 4


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

CARDIOVASCULAR
5 BIOTHERAPEUTICS, INC.,
6 Alleged Debtor
7
8
9
10
11

Chapter 7
(INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)

12 EXHIBIT
13
CVBT 4
14
15
16
17
18
19
20
21
22
23
24
25
26




LAW OFFICE OF MARY F. CHAPMAN, LTD.
8440 West Lake Mead Blvd.
Suite 203
Las Vegas, Nevada 89128 702-202-4223
702-202-2003
[e-mail] May 4, 2018
Via U.S. Mail and E-mail Cardiovascular Biotherapeutics, Inc. c/o Black Bear Advisors, LLC
Attn: Bob Schleizer, Managing Partner 3131 McKinney Avenue
Suite 600
Dallas, Texas 75204

Re: Legal opinion on booked liabilities.

Dear Bob:

Pursuant to your request I have reviewed a number of the booked outstanding liabilities of Cardiovascular Biotherapeutics, Inc. These liabilities vary in classification: employee liability; contractor liability; board member liability; vendor liabilities and judgment liabilities. After reviewing the supporting documentation provided, and considering, in some cases the lack of documentation, I would provide you with the following legal opinion based upon Nevada law.

Employee Liabilities:

The statute of limitations for willful failure to pay an employee is three years, with the liability decreasing as time passes because an employee can only claim money due and owing from the date they file going backwards for three years. Based upon the employment records provided for the non contract employees liability only exists for two employees. Yvonne Luell, but this liability will expire completely on May 21, 2018; and Joy Marsico, with the liability completely expiring on October 13, 2015. Accordingly, very little employee liability exits and it will all be barred by the statute of limitation by October 13, 2018. Legally, the employee liability currently on Cardiovascular Biotherapeutics, Inc.’s books should be removed as it is legally impossible to force payment of those moneys with the very minor exceptions of Joy Marico’s and Yvonne Luell’s limited liability that exists through the above noted dates.

Contract Employees:

The statute of limitations for a contracted employee and/or consultant is six years. With the exception of Daniel Montano, Corey Flaa and Mike Flaa the records indicate none of the




contracted employees/consultants worked beyond October 2012, and most seem to have stopped working well before October 2012. To pursue a claim the contract employees would not only need to file a lawsuit or an actual arbitration demand within the six year statute of limitations, but they would also have to prove that they actually provided a service/work for the company within the last six years. The company records are void of any activity from these contracted individuals making their ability to prevail on a claim very unlikely. The only contracted employees/consultants that have raised a potential claim thus far are Daniel Montano (his claims are subject to the bankruptcy court proceedings); Corey Flaa who has made settlement demands, but not taken actual steps to perfect a claim; and Michael Flaa who has made settlement demands, but not taken actual steps to perfect a claim. In October 2018, all of the contractor claims will be extinguished except for those of Daniel Montano, Cory Flaa, and Michael Flaa.
Accordingly, from a legal prospective I would recommend removing the contractor liability from the books in October 2018 for all but the noted three contractors. Additionally, those contractors who actually stopped working prior to May 4, 2012, I would recommend removal of the liability now since it can no longer be legally pursued.

Board of Directors:

There was no contractual right to board fees for members of the board of directors nor is a board fee noted in the by laws. Accordingly, here is no legal basis for any prior member of the board of directors to bring forth a claim for unpaid board fees. Accordingly, these alleged liabilities should be removed form the company’s books.

Vendor Liabilities:

The accounts payable generally lack contracts and/or purchase orders to support a breach of contract claim. Accordingly, these claims are governed by a four year statute of limitations. The only known outstanding liability that is covered by a contract is for legal and accounting services, so a six year statute of limitations applies to those liabilities. The invoices on record that I was provided with indicates that the invoice dates for the legal and accounting services was prior to May 4, 2012. Therefore, the professional services liabilities do not survive at this time based upon the statute of limitations. A review of the remaining accounts payable indicates that all accounts that were invoiced prior to May 4, 2014, should be removed from the company’s books as they are no longer subject to collection. The spreadsheet provided indicates only Thunderbolt Press was the only company to invoice afterwards with invoices being received through 2015. Accordingly, Thunderbolt Press appears to be the only active liability from a vendor and all others should be removed form the company’s books as they can no longer be collected.

Judgment Liabilities:

Of the old judgments located only one is still active, case number A-09-597440-C for
$701,205.29 plus incurring interest with Howard Hughes being the judgment creditor. All other litigation was either settled or the statute of limitations on the collection of the judgments because the holders failed to timely renew them. Accordingly, the only judgment liability that




should be reflected on the company’s books is the Howard Hughes lawsuit. Promissory Notes:
A number of promissory notes: 12-21-2007 with CLC Land Investment, LP; 12-20-2007 with Fairdale Consulting; 5-13-2008 with Blackburn Family Trust; 5-13-2009 with Karen Wenk- Jordan; 3-11-2011 with Mr. Karl Bredy; and 3-12-2012 with Robert C. Bohorad were reviewed. In each case, the promissory note by its terms was payable from six months to one year from the date of issue. Accordingly, these written contracts are governed by a six year statute of limitations. Only one promissory note reviewed is within the statute of limitations, the March 12, 2012 promissory note to Robert C. Bohorad that was payable on September 12, 2012. Mr.
Bohorad would need to file a claim on or before September 12, 2018, and even if he did do so success on the claim is not guaranteed based upon a latches argument. It is my understanding that I was not provided other promissory notes dated in and/or after 2012 because these notes have either been paid or the liability is not being questioned. Therefore, based upon my review of the liability notes I reviewed, I recommend that the promissory note liabilities should be removed form the company’s books as they are time barred by the statute of limitations with the exception noted for Mr. Bohorad’s note.

If you have any further questions regarding these matters please feel free to contact me.

Very truly yours,
Law Office of Mary F. Chapman, Ltd.

Mary F. Chapman, Esq.

Mary F. Chapman, Esq.

Case 18-15410-gs Doc 80-5 Entered 12/11/18 19:54:58 Page 1 of 37











2
3 In re


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

4 CARDIOVASCULAR BIOTHERAPEUTICS, INC.,
5
6 Alleged Debtor
7
8
11------------------'

Chapter 7 (INVOLUNTARY)

AFFIDAVIT OF CALVIN A. WALLEN, III IN SUPPORT OF CVBT'S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(l)
pdf bookmarked

10 1. My name is Calvin A. Wallen, III. I am over the age of 21 years, have never been
11 convicted of a felony and am fully competent to make this affidavit.
12
2. All statements made herein are based on personal knowledge unless otherwise stated
13 and are true and are made under penalty of perjucy. This affidavit is provided in support of the Motion referenced above in the caption and is commonly referenced
14 herein as the "Motion."
15
16 3. I am the current Chief Executive Officer of the alleged debtor CardioVascular BioTherapeutics, Inc. That corporation is chartered in the State of Delaware and
17 headquartered in Dallas Texas where I office. It is commonly referenced as "CVBT." References in this affidavit to CVBT refer to the alleged debtor.
18
19 4. My initial involvement with CVBT began in 2009. I was at that time a lender and not a shareholder.
20
21 5. I currently am the holder of a secured promissory note. The outstanding balance on that existing note exceeds $1,000,000. The security for the existing note includes all of CVBT's intellectual property. After the involuntary petition was filed against
23 CVBT that note went into default and I notified CVBT's Board that I intended to begin collection actions. The Board negotiated a standstill until December 31, 2018.
24 If the involuntary petition has not been dismissed I intend to continue collection actions. If it bas been dismissed I have agreed to a 90-day extension of the standstill to give CVBT an opportunity to restructure or pay the note.
26











1 6. When I became involved with CVBT Mr. Daniel Carmichael Montano (..Montano") was the Chief Executive Officer, ("CEO"). Prior to 2012 I became extremely
2 concerned that Montano was managing CVBT for the benefit of his family and friends
3 and not for the benefit of its creditors and shareholders as a group. Consequently I filed a lawsuit in the Chancery Court in Delaware to have Montano and current
4 management removed.
5
7. The Delaware Chancery Court ultimately ruled in favor of removing current
6 management. Attached Exhibits ..Wallen 1" and ..Wallen 2" are genuine copies of the
7 orders entered by that court removing Montano from management of CVBT.
8 8. Montano had guaranteed CVBT's promissory note payable to me and when CVBT
9 defaulted I pursued collection against Montano. After I obtained a judgment against him he filed a Chapter 7 petition in this District and that case is pending as Case No.
10 13-16289-gs.
11
9. I also filed an adversary proceeding against Montano to prevent his discharge of his
12 debts and this Court ruled in my favor and denied Montano's discharge under 11
u.s.c. 727.
14 10. When Montano was removed from CVBT management by the Delaware Court he
15 remained involved with other companies that were in the biotech industry. CVBT concluded that Montano and others with whom he was associated had started these
16 other companies with intent to steal CVBT's intellectual property. Pursuant to an agreement between CVBT and Montano requiring arbitration of disputes CVBT filed
17 an arbitration demand and that demand has been served on Montano and others. A
18 genuine copy of that demand without exhibits is attached as ..Wallen 3."
19 11. In my current position as CEO of CVBT I am familiar in detail with its books and
20 records and personally sign checks for payments of CVBT's obligations. To fund its obligations CVBT raises investment capital. It does not as yet have any revenue from
21 sales. On and prior to September 10, 2018 CVBT had been paying its debts on or before they come due for at least three continuous years.
22
23 12. CVBT has an active board of directors including independent directors. Promptly
24 after the pending involuntary petition was filed the CVBT Board convened and voted to stop raising investment capital. Consequently CVBT is now funding operations
25 including defense of the involuntary petition with previously raised investment capital that otherwise would have been used to continue efforts to get its drugs into clinical
26 -2-
















l trials and into the market.
2 13. On September 10, 2018 CVBT was not obligated to at least three creditors who held
3 debts not subject to a bona fide dispute. The petitioning creditors who may have actually held claims against CVBT at one time held claims that predated the above
4 referenced orders of the Delaware Chancery Court.
5
14. Prior to May 2014 CVBT's Board of Directors decided to determine what obligations
6 of CVBT were time barred by relevant statutes of limitations. Accordingly, it engaged Mary Chapman who CVBT understood to be a Nevada attorney with specialized
7 knowledge of employment and labor law. Ms. Chapman reviewed the books and
8 records of CVBT and provided the opinion attached to CVBT's pending Motion for Summary Judgment as Exhibit 4.
9
10 15. It is my opinion that legitimate creditors of CVBT and its investors are being damaged by this involuntary proceeding and it is not in the best interests of CVBT or its
11 legitimate creditors to have CVBT as an alleged debtor in this involuntary proceeding.
12
16. The primary business of CVBT has been and is development of medical uses of a
13 protein substance known as FGF-1.
14
15 17. CVBT was prepared to accept and had sourced further capital from existing and new investors of at least $600,000, and reasonably anticipated sufficient funding to
16 continue pursuing its claims against Montano and his new "Zhittya" companies.
17
18. CVBT has several "payment" windows for required research with respect to CVBT's
18 on-going clinical trials that, if missed, will delay bringing its drugs to market by at
19 least a year. These include "payment" windows in January 2019.
20 19. Both of the Luell petitioning creditors hold significant stock in CVBT and it is my
21 opinion that their position as petitioning creditors is agains eir legitimate personal best interests.
22
23
24
25
26 -3-















State of Texas )(
2 County of Dallas )(
3
On December 10, 2018 personally appeared Calvin A. Wallen, III who is personally
4 known to me the rsigned notary public and on his oath under penalty of perjury the above d vit d swore that all statements therein are true.
5
6
7
[seal]
8

9

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

25
26
-4-















1
2
3 In re 4


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

CARDIOVASCULAR
5 BIOTHERAPEUTICS, INC.,
6 Alleged Debtor
7
8
9
10
11

Chapter 7
(INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)

12 EXHIBIT
13
CVBT 1
14
15 &
16
WALLEN 1
17
18
19
20
21
22
23
24
25
26

GRANTED I
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MICKAEL A. FLAA, )
)

Plaintiff,
v.

)
) C.A. No. 8632-VCG
)

DANIEL C. MONTANO, VIKTORIYA T. ) MONTANO, JOHN W. JACOBS, ERNEST )
C. MONTANO, ERNEST MONTANO III and ) JOONG KI BAIK, )
)


and

Defendants, )
)
)

CARDIOVASCULAR BIOTHERAPEUTICS, ) INC., )
)
Nominal Defendant. )

STIPULATED [PROPOSED] STATUS QUO ORDER
IT IS HEREBY ORDERED, for good cause shown, that pending resolution of the above-captioned action (the "Action") or further order of the Court:
1. The board of directors for Cardiovascular Biotherapeutics, Inc. (the "Company"), shall consist of Mickael A. Flaa, Grant Gordon, Calvin A. Wallen III, Jon Ross, and Robert Schleizer (the "Interim Board"), and the President and CFO shall be Mickael A. Flaa (the "Interim President").
2. Daniel C. Montano, Viktoriya T. Montano, John W. Jacobs, Ernest C. Montano, Ernest Montano III and Joong Ki Baik ("Defendants"), shall not (i) hold themselves out (collectively or individually) as current directors or officers of the


RLFI 8908877v. I





Company, or (ii) purport to take any action as purported directors or officers of the Company.
3. The Company shall not undertake any action outside the ordinary course of the Company's business, including, without limitation:
A. causing the dissolution, liquidation or winding up of the Company;

B. instituting any new legal proceedings, including without limitation, any proceedings in bankruptcy;
C. entering into any agreement with respect to a merger, tender offer, restructuring, or recapitalization;
D. indemnifying or advancing any fees or costs in connection with this
Action;

E. changing the capital structure of the Company in any way, including through (i) the issuance, cancellation, or splitting of securities (including, but not limited to, stock, bonds, warrants, and options), or (ii) alteration or modification of any stock ledger or stock list;
F. amending, modifying, or repealing the certificate of incorporation or bylaws of the Company; or
G. declaring any dividend or distribution with respect to the capital stock of the Company.



-2-

RLFt 8908877v.l





4. The Interim Board shall provide written notice (a "Paragraph 4 Notice") to Defendants at least 48 hours, not counting Saturdays, Sundays or holidays ("Notice Period"), prior to the Company taking any of the following actions:
A. engaging in, entering into, or agreeing to any transaction, contract or agreement the value of which exceeds $25,000;
B. amending, waiving or modifying any contract or agreement, the value of which exceeds $25,000;
C. replacing, removing, demoting or changing the terms of employment of any current officer or employee, or hiring any new employee with managerial responsibility;
D. incurring any new debt (e.g., establishing new lines of credit, loans, etc.) which exceeds, individually or in combination with related or similar debt $100,000 (not factoring in the transaction contemplated by paragraph 7); or
E. transferring, encumbering, exchanging, expending, pledging, loaning, or otherwise disposing of, directly or indirectly, any asset of the Company, the value of which exceeds $25,000.
5. During any Notice Period, if the Defendants provide the Interim Board, in good faith, with a written objection, including the factual basis for such objection, to any action contemplated by a Paragraph 4 Notice (a "Paragraph 5 Objection"), the Company shall not take the proposed action without (a) the prior written consent of the objecting

- 3 -
RLFI 8908877v.l





party, or (b) an order of the Court expressly permitting the proposed action. If the Defendants do not timely provide a Paragraph 5 Objection to any action contemplated by a Paragraph 4 Notice, then such action shall be deemed to be within the ordinary course of the Company's business for purposes of Paragraph 3 of this Order.
6. Any Paragraph 4 Notice or Paragraph 5 Objection shall be by email, using the following addresses: (a) for the Interim Board, to Calvin A. Wallen III ([e-mail]) and Mickael A. Flaa ([e-mail]), and (b) for the Defendants, to Daniel C. Montano ([e-mail]). All such notices shall copy Richard P. Rollo, Esq. ([e-mail]) and David Finger, Esq. ([e-mail]).
7. Notwithstanding any other provision in this Order, the Interim Board shall be permitted to (i) incur new debt, and (ii) encumber, pledge, or otherwise provide a security interest, directly or indirectly, in CVBT's rights under its November 22, 2010 License Agreement with Merck Sharp & Dhome Corp, to the extent necessary to pay the
$100,000 March 1, 2013, invoice from Merck Sharp & Dhome Corp; provided, however, that such transaction shall be on substantially similar terms to· the draft transaction agreements provided to defendants' counsel by email for review on July 10; 2013.
8. The parties shall not destroy any documents pertaining to the disputes at issue in this Action, the Company or Vizier Investment Capital Ltd.
9. The Defendants shall promptly, and no later than three (3) business days

-4-

RLFI 8908877v.1





from the date of this Order, return (or provide copies of) any and all Company documents and other property to the Company's offices at 9500 Hillwood Drive, Suite 200, Las Vegas, NV 89134. The foregoing includes, but is not limited to:
A. All final minutes of CVBT board or subcommittee meetings, and any notes and draft minutes for CVBT board or subcommittee meetings for which there are no final minutes;
B. All recordings of CVBT board meetings or any other CVBT
meeting;

C. For each CVBT bank account, any checkbooks, check stubs, check registers, bank statements, or bank reconciliations.
D. All correspondence with any banks regarding any CVBT bank accounts since June 2012.
E. All draft agreements or contracts involving CVBT since June 2012.

F. All documents (including emails) related to any employee actions taken since June 2012.
G. All contracts (including non-disclosure agreements) entered into on behalf of CVBT or related to CVBT since June 2012.
H. Any documents (including emails) related to any CVBT stock transactions entered into since June 2012.





I. Any documents (including emails) related to any debt transactions entered into since June 2012.
J. Any documents (including emails) related ·t o vendor matters and communication (new vendors, existing vendors, and cancelled vendors) since June 2012.
K. All correspondence with the FDA since January 1, 2013.

Any documents returned to the Company by the Defendants pursuant to this paragraph 9 shall be used by the Interim Board solely for the purpose of taking action inside the ordinary course of the Company's business, consistent with the terms of this Order, unless the Interim Board first obtains (a) the prior written consent of the Defendants, or (b) an order of the Court expressly permitting the proposed action.
10. Defendants shall promptly, and no later than three (3) business days from the date of this Order, change any and all mailing addresses for CVBT with third parties to CVBT's mailing address at 1930 Village Center Circle #3-625, Las Vegas, NV 89134.
11. The Defendants shall promptly, and no later than three (3) business days from the date of this Order, (i) identify any and all CVBT bank accounts, or containing CVBT funds and provide, and (ii) take the steps necessary to transfer control of those CVBT accounts and funds to the Interim President.
12. The restrictions imposed by this Order:

A. apply to the parties, and any other person(s) purporting to act on behalf of (or for the benefit of) the Company;





B. apply to all assets and funds of CVBT, irrespective of the bank account(s) the funds are contained in or the name in which the assets are titled; and
C. may be waived on a case-by-case basis by the written agreement of

(a) Richard P. Rollo, Esq. and (b) David Finger, Esq.

13. The Court may modify the restrictions imposed by this Order upon application of any party for good cause shown.

Vice Chancellor Glasscock














1
2
3 In re 4


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

CARDIOVASCULAR
5 BIOTHERAPEUTICS, INC.,
6 Alleged Debtor
7
8
9
10
11

Chapter 7
(INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)

12 EXHIBIT
13
CVBT 2
14
15 &
16
17 WALLEN 2
18
19
20
21
22
23
24
25
26




IN THE COURT OF CHA CERY OF THE STATE OF DELAWARE


MICKAEL A. FLAA,

Plaintiff

V.

DANIEL C. MONTANO, VIKTORIYA T. MONTANO, JOHN W. IA OB
ERNEST C. MO T 0 ERNESTMO TA JOONG KI BAIK,

Defendants,

and

CARDIOVAS ULAR BJOTHERAPEU ICS, INC.,

ominal Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER










C.A. o. 9146-V G


IT IS HER BY ORDERED, this 16th day of September, 2014, for the reasons stated in the Special Master's Final Report (Trans. ID 55967423· the "Report") and for good cause shown that:1
1. The decisions of the Special Master and the Report are hereby confirmed·

1 Unless otherwise defined, capitalized terms have the meanings set forth in the Report.


Rlfl 10809696v.l













1
2
3 In re 4


UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

CARDIOVASCULAR
5 BIOTHERAPEUTICS, INC.,
6 Alleged Debtor
7
8
9
10
11

Chapter 7
(INVOLUNTARY)

ALLEGED DEBTOR’S AMENDED MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY ABSTAIN AND DISMISS PURSUANT TO 11 U.S.C. §305(a)(1)

12 EXHIBIT
13
CVBT 3
14
15 &
16
WALLEN 3
17
18
19
20
21
22
23
24
25
26

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Frank L. Broyles Admitted pro hac vice TX Bar 03230500
222 W. Las Colinas Blvd.
1650 East Tower
Irving, TX 75039
[phone]
[e-mail]

Matthew L. Johnson (6004) Russell G. Gubler (10889) JOHNSON & GUBLER, P.C.
8831 West Sahara Avenue Las Vegas, Nevada 89117 Phone: [phone]
Fax: [phone]
e-m ail: [e-mail]

Attorneys for CardioVascular BioTherapeutics, Inc., (“CVBT”), Alleged Debtor

UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA

Case No: BK-S-18-15410-GS

Chapter 7 (INVOLUNTARY)

DECLARATION OF MICHAEL A. FLAA IN SUPPORT OF CVBT’S MOTION FOR SUMMARY JUDGMENT
pdf bookmarked



Mickael A. Flaa, over the age of 21-years, declares under penalty of perjury, pursuant to 28 U.S.C. §1746 as follows:
1. I am the President of CardioVascular BioTherapeutics, Inc., a Delaware Corporation, licensed to do business in the State of Nevada, typically referenced herein as CVBT. I started with CVBT as a financial consultant in June of 2003. I became CVBT’s Treasurer, Vice President and Chief Financial Officer in




February of 2005 and continued through May 11, 2013. Thereafter, I served as President, Chief Financial Officer and Treasurer from June 2013 through January 2018.
2. Since January 2018, I have served as CVBT’s President and Treasurer. I have been a member of CVBT’s Board of Directors since February 2005.
3. I am familiar with CVBT’s operations and business practices including, but not limited to, employee matters, historic business operations, company records and contracts.
4. Prior to the filing of this case, the only demand Petitioner Ms. Yvonne Johnson- Luell made for payment of back wages was a June 24, 2015 demand for an unspecified amount of alleged accrued wages and interest. No further demand was ever made by Ms. Yvonne Johnson-Luell for wages allegedly due prior to the filing of this case.
5. CVBT disputes owing any money to petitioner Ms. Johnson-Luell. Ms. Johnson- Luell started working for CVBT on February 21, 2007 as an IR Representative employee. Ms. Johnson-Luell was an at-will employee as evidenced by the attached Exhibit 1, which is a genuine copy of her original Employment-At-Will acknowledgement. CVBT contends that Ms. Johnson-Luell stopped working for CVBT on August 30, 2012, when she abandoned her position by just ceasing to report for work at the company’s office located at 9500 Hillwood Drive, Suite 200, Las Vegas, NV 89134. In 2015, I was informed via an email from a CVBT employee that Ms. Jonson-Luell had a different job as of December, 2012.
6. The schedule attached to the Amended Petition evidences that Ms. Johnson-Luell stopped coming to CVBT’s offices by August 2012. [D.E.#76, page 23 of 84].




7. On May 21, 2015, Ms. Johnson-Luell sent me a purported resignation letter to which I promptly responded to in writing advising her that her employment was considered terminated by abandonment effective August 30, 2012 (genuine copies of her original letter and my original letter in response are attached hereto as Exhibit 2).
8. The schedule attached to the Amended Involuntary Petition evidences that Ms.

Yvonne Johnson-Luell’s last day of work was no more recent than April 30, 2013. [D.E.#76, page 37 of 84].
9. CVBT contends in good faith that all claims of Ms. Johnson-Luell are time barred under all possible statutes of limitations.
10. CVBT disputes owing Petitioner Ms. Judith Luell any funds. Ms. Judy Luell started working for CVBT on or about May 11, 2004, as an executive secretary. After Ms. Luell left her employment with CVBT, it was discovered that a number of company files, including Ms. Luell’s personnel file were missing from CVBT. Accordingly, I do not have access to Ms. Luell’s employment files, but I was present and am well aware of her last day she appeared for work in the office was August 30, 2012. To the best of my knowledge, Ms. Luell did not report for work at 9500 Hillwood Drive, Suite 200, Las Vegas, NV 89134 after August 30, 2012.
11. The schedule attached to the Amended Involuntary Petition evidences that Ms.

Judith Luell’s last day of work in the office was no later than July 12, 2012. [D.E.#76, page 23 of 84]. The same schedule also evidences that the last expense obligation owed to her by CVBT was no later than February 26, 2010. [D.E.#76 Page 27 of 84].




12. CVBT considered and considers Ms. Luell’s employment terminated on August 30, 2012 for the same reasons described in Exhibit 2.
13. CVBT also considers Ms. Luell in violation of the terms of employment since she removed files from CVBT’s offices and CVBT does not have any record of her returning many of those files and contends that those files have not been returned. It would be normal and customary for CVBT to make a written record of any returned files.
14. CVBT denies any obligation to pay Petitioner Ms. Judith Pelton any funds. Ms.

Pelton started working for CVBT in September 2004, as an executive secretary. However, on August 25, 2010, Ms. Pelton was converted to a consultant with a written contract wherein she received monthly compensation for performing the duties of the Corporate Secretary Office. A true and correct copy of her consulting contract is attached hereto as Exhibit 3. Attached as Exhibit 4 is a genuine copy of the by-law section describing the duties Ms. Pelton was required to perform. The last evidence of Ms. Pelton performing her required duties was on June 17, 2009, the date of her last entry into the corporate records.
15. CVBT contends in good faith that any claims Ms. Pelton may have had are now time barred under any applicable limitations statute and CVBT contends that it has an absolute defense and a bona fide dispute as to any liability Ms. Pelton may claim she is owed.
16. Petitioner Regenerative Medicine Organization (“RMO”) was a non-active Nevada nonprofit corporation was formed by officers and directors of CVBT to conduct medical training seminars to educate doctors on regenerative medical techniques. Prior to the filing of this case Regenerative Medicine Organization




forfeited its charter and rights to do business in the State of Nevada and, as of the date of this affidavit and based on a review of the Nevada Secretary of State’s website, it has not revived those rights. RMO has filed pleadings in this case admitting it forfeited its charter and it has not filed any documents evidencing a revival of that charter.
17. I attended the deposition of Mr. John Laub in connection with this case. Mr.

Laub admitted RMO has not and cannot revive its charter in Nevada.

18. CVBT was a donor to Regenerative Medicine Organization for several years, however, it had no contracts with Regenerative Medicine Organization or any financial support guarantee. CVBT has no outstanding pledges due or owing to Regenerative Medicine Organization.
19. The Amended Petition filed by the Petitioning Creditors shows line items paid by CVBT and others to RMO and that were considered contributions as evidenced by the last column containing the abbreviated term “contrib.” See, e.g., Docket Entry #76, pages 46-49.
20. I was a director of Regenerative Medicine Organization by the Nevada Secretary of State’s office, and I can attest that I was never contacted regarding a resolution to approve the filing of this bankruptcy court action. Further, I would not have voted in favor of filing this action against CVBT because I am well aware that CVBT has no debt owing to Regenerative Medicine Organization and this is a fraudulent claim. I have attached a current printout from the Nevada Secretary of State’s Office records establishing that Regenerative Medicine Organization has a revoked status.




21. Petitioner JoongKi Baik has never made any demand on CVBT for payment of anything. CVBT disputes that it owes Mr. Baik any compensation for work and services.
22. Mr. Kenneth Keiller claims he is owed $260,000 for work and services he provided to CVBT. There are not any records in CVBT’s possession that I am aware of evidencing that Mr. Keiller ever provided any work or services to CVBT during the time I have been associated with CVBT.
23. Mr. Keiller has never made any demand for payment for any work and services that I am aware of since I have been associated with CVBT. I believe Mr. Keiller’s claim is fraudulent and if not fraudulent is time barred under applicable Nevada limitations law.
24. Mr. Wolfgang Priemer filed a joinder claiming he is owed some six-figure number for work and services he provided to CVBT. CVBT disputes his claim. Mr. Priemer was a member of CVBT’s board of directors until February 20, 2008. Mr. Priemer has not performed any work or services for CVBT since February 20, 2008 and any claim he may have is time barred.
25. CVBT contends that it has a bona fide dispute regarding Mr. Priemer’s claims and if Mr Priemer holds any claims against CVBT, they are time barred under applicable statutes of limitations.
26. None of the seven petitioning creditors has ever filed a claim for payment against CVBT prior to their filing of the involuntary petition for bankruptcy.
27. To my knowledge none of the petitioning creditors has filed an arbitration demand or a lawsuit alleging monies due and owing to them by CVBT.




28. CVBT believes in good faith that this involuntary bankruptcy was orchestrated by CVBT’s former CEO, Daniel Carmichael Montano, who continues to compete with CVBT by misappropriation of CVBT’s intellectual property rights. CBVT has a pending arbitration proceeding against Mr. Daniel Montano and organizations with which he is affiliated for, among other things, misappropriation of CVBT’s intellectual property rights.
29. Daniel Montano has not had any operational authority over CVBT matters since the Delaware Court awarded operational control of CVBT to the new Board of Directors pursuant to a Status Quo Order on July 12, 2013 and again when he lost a proxy fight and subsequently was declared out of control of CVBT by a Delaware Court on September 16, 2014.
30. CVBT also contends that Petitioners Ms. Judith Luell, Ms. Yvonne Johnson-Luell and Mr. John Laub began working with Mr. Daniel Montano to damage and destroy CVBT beginning in in June 2013.
31. CVBT contends that the petitioning creditors have misappropriated CVBT documents in breach of their obligations to CVBT.
32. Based on the above facts, CVBT contends it has bona fide disputes with each of the petitioning creditors regarding the basis for their claims and CVBT contends the claims of the petitioning creditors, if ever valid, has lost their validity due to the expiration of applicable statutes of limitations.
33. CVBT also disputes the contentions by the Petitioners in Form 205 block 11 that it is generally not paying its undisputed debts as they become due. CVBT has timely paid all of its undisputed obligations since 2015 as they became due through the date of the Petition, September 10, 2018.




34. The Petitioning Creditors contend that CVBT owes outstanding director’s fees to Grant Gordon and me. These fees were accrued by CVBT prior to Mr. Montano’s removal from the Board of Directors in 2013. CVBT considers these fees uncollectible and unenforceable and not a legitimate obligation of CVBT.
I hereby execute this affidavit on this 7th day of December 2018.






Mickael A. Flaa
President of Alleged Debtor CardioVascular BioTherapeutics, Inc.

Case 18-15410-gs Doc 80-6 Entered 12/11/18 19:54:58 Page 9 of 22
















TO DECLARATION OF MIKE FLAA

..
I ,_



































Case 18-15410-gs Doc 80-6 Entered 12/11/18 19:54:58 Page 10 of 22




Employment At-Will
All employees are employed on at "at-will" basis. At-will means that both you and the Company have the right to terminate employment at any time, for any reason or no reason, ?ith or without prior notice or cause. The Employee Manual Is intended to make the mutual at-will relationship perfectly clear, and to make certain that no one has any express or Implied contract limitfng your right to resign, or the Company's right to terminate your employment, at any time, for any reason or for no reason. Furthermore, the Company may change your duties or compensation or transfer, reassign, promote, suspend or otherwise· change the terms and conditions of your employment (other than the at will relationship), with or without cause or prior notice. The at-will relationship may not be changed by any person, statement, act or acts other than an express written contract signed by you and the Company. It is Important that all employees understand and accept this relationship as an integral part of employment with Cardio.
Acknowledgment
By signing below I attest I have read the Employee Manual and I understand, accept and will comply with each policy under all sections of the manual, including, but not limited to sections titled: The Way We Worlc, Your Pay and Progress, Time Away From Work and Other Benefits, On The Job, Safety In The Workplace and any other policy now in effect or created in the future, including, but not limited to: Confidentiality, Conflicts of Interest, Use of Company Equipment, Freedom from Harassment, Code of Conduct and Corporate Compliance, Non-Solicitation, and Attendance.
I have had an opportunity to ask questions regarding the Employee Manual and, to the extent that I have asked, my questions have been answered to my satisfaction. I agree to comply with the policies contained herein and with any new policies Implemented during my employment. I further un·derstand that it is my •affirmative duty to familiarize myself with all current and future Company policies. Should I have any doubt or question as to the application or existence of a Company policy, I understand I am to inquire with Human Resources or the Legal Department.
Signature: lj---? Print Name:__Y.?ann e . . . . LLAA... L\








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TO DECLARATION OF MIKE FLAA

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TO DECLARATION OF MIKE FLAA

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TO DECLARATION OF MIKE FLAA






Case 18-15410-gs Doc 80-7 Entered 12/11/18 19:54:58 Page 1 of 2


Case 18-15410-gs Doc 80-7 Entered 12/11/18 19:54:58 Page 2 of 2


1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3

4 In re CARDIOVASCULAR ) BIOTHERAPEUTICS, INC., )
5 ) Case No. BK-S-18-
Alleged Debtor. ) 15410-GS
6 )
)
7

8

9

10

11

12
DEPOSITION OF JUDITH LUELL
13

14

15

16

17
Taken at the Offices of Johnson & Gubler, P.C.
18 8831 West Sahara Avenue Las Vegas, Nevada
19
On Monday, December 3, 2018
20 At 1:12 p.m.
21

22

23

24
Reported by: Jane V. Efaw, CCR #601, RPR


1 Appearances:
2 For the Petitioning Creditors:
3 DAVID A. RIGGI, ESQ. Riggi Law Firm
4 5550 Painted Mirage Road Suite 320
5 Las Vegas, Nevada 89149 [phone]
6
For the Alleged Debtor:
7
FRANK L. BROYLES, ESQ.
8 222 West Las Colinas Boulevard 1650 East Tower
9 Irving, Texas 75039 [phone]
10
Also Present:
11
CALVIN WALLEN, III
12

13 * * * * * * * *
14

15

16

17

18

19

20

21

22

23

24


1 I N D E X
2 WITNESS PAGE
3 JUDITH LUELL
4 Examination by Mr. Broyles 5, 44
5 Examination by Mr. Riggi 42
6 E X H I B I T S

7 NUMBER DESCRIPTION PAGE
8 Exhibit 1 Alleged Debtor's Notice of Intent 7
Intent to Take the Oral Deposition
9 of Petitioning Creditor Judith Luell and Demand for Production
10 of Documents
11 Exhibit 2 Involuntary Petition Against a 11
Non-individual
12
13 Exhibit 3 Cardiovascular Biotherapeutics, 14
Inc., Notice of Annual Meeting
14 of Stockholders
15 Exhibit 3A Zhittya Regenerative Medicine 30
Business Entity Information
16
Exhibit 3B Zhittya Genesis Medicine, Inc. 33
17 SilverFume Business Information
18 Exhibit 4 Finding of Fact and Conclusions 19
of Law in Support of Order Granting
19 Motion to Approve: (1) Settlement Agreement Pursuant to Fed.R.Bank.P.
20 9019(a) with CVBT Parties; (2) Distribution of Cash and/or CVBT
21 Stock to Creditors Pursuant to Settlement Agreement with CVBT
22 Parties; and (3) Settlement Agreement Pursuant to Fed.R.Bank
23 9019(a) with Leonardo, L.P.
24 Exhibit 5 8/9/03 E-mail Chain 21


1 E X H I B I T S (Continued)
2 NUMBER DESCRIPTION PAGE
3 Exhibit 6 Employee (Contract) Confidential 25
Information and Non-Solicitation
4 Agreement
5 Exhibit 7 Deposition Transcript of Judith 26
Luell Taken on 7/2/13
6
Exhibit 8 Cardiovascular Biotherapeutics, 43
7 Inc. Press Release
8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24


1 currently employed. Are you doing any part-time work
2 at all?
3 A. No.
4 Q. So
5

6

7

8

9


11 BY MR. BROYLES:
12 Q.











23




1

2

3 BY MR. BROYLES:
4 Q. So getting back to the question. With whom
5 have you discussed this deposition other than the
6 people Mr. Riggi just described?
7 A. No one, as far as I know.
8 Q. Have you discussed it with Daniel Montano?
9 A. No.







16 MR. BROYLES: I'm go to ask the court
17 reporter to mark this as Exhibit 1.
18 (Whereupon Exhibit 1 was marked
19 for identification.)
20 BY MR. BROYLES:
21 Q. Have you seen that document before? And I'm
22 referring to Exhibit 1.
23 A. If it's in that packet, yes.
24 MR. RIGGI: Well, I'll let you look at it.
25 THE WITNESS: Yes, I believe so.


1 BY MR. BROYLES:
2 Q. Go ahead.
3 A. I don't recall the date.
4 Q. So asked and answered means you don't recall
5 the date? Do you have any documents that would
6 refresh your memory as to when you engaged Mr. Riggi?
7 A. No.
8

9
















25 Q. How much did she pay? Do you know?


1 A. No. She's one of the clients.
2 Q. Now, I believe you testified you didn't
3 leave CVBT's offices until 2014; is that correct?
4 A. No.
5 Q. When did you leave CVBT's offices?
6 A. I believe in 2013.
7 Q. Do you know when in 2013?
8 A. No.
9 Q. Was Mr. Wallen -- did he office there when
10 you were still officing there?
11 A. No.
12 Q. Now, you understand that when you become a
13 petitioning creditor in an involuntary bankruptcy,
14 that's pretty serious stuff, do you not?
15 A. Yes.
16 Q. And you recognize we're trying to get this
17 case dismissed. Correct?
18 A. Yeah.
19 Q. And you recognize if the case is dismissed,
20 we are entitled to pursue the petitioning creditors
21 for attorney's fees and damages, do you not?
22 A. Yes.
23 Q. So you recognize there is a downside to
24 you --
25 A. Yes.


1 CERTIFICATE OF DEPONENT
2 PAGE LINE CHANGE REASON
3

4

5

6

7

8

9

10

11

12

13

14

15 * * * * *
16

17 I, JUDITH LUELL, deponent herein, do hereby certify and declare the within and foregoing
18 transcription to be my deposition in said action; that I have read, corrected and do hereby affix my
19 signature to said deposition.
20

21

22
JUDITH LUELL, Deponent
23

24

25


1 REPORTER'S CERTIFICATE
2 STATE OF NEVADA )
) SS:
3 COUNTY OF CLARK )
4 I, Jane V. Efaw, CCR No. 601, do hereby certify:
5 That I reported the taking of the deposition of
6 the witness, JUDITH LUELL, at the time and place
7 aforesaid;
8 That prior to being examined, the witness was by
9 me duly sworn to testify to the truth, the whole
10 truth, and nothing but the truth;
11 That I thereafter transcribed my shorthand notes
12 into typewriting and that the typewritten transcript
13 of said deposition is a complete, true and accurate
14 transcription of said shorthand notes taken down at
15 said time, and that a request has been made to review
16 the transcript.
17 I further certify that I am not a relative or
18 employee of counsel of any party involved in said
19 action, nor a relative or employee of the parties
20 involved in said action, nor a person financially
21 interested in the action.
22 Dated at Las Vegas, Nevada, this day of

23 , 2018.
24

25 Jane V. Efaw, CCR #601

Case 18-15410-gs Doc 80-8 Entered 12/11/18 19:54:58 Page 11 of 11


1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3

4 In re CARDIOVASCULAR ) BIOTHERAPEUTICS, INC., )
5 ) Case No. BK-S-18-
Alleged Debtor. ) 15410-GS
6 )
)
7

8

9

10

11

12
DEPOSITION OF YVONNE JOHNSON-LUELL
13

14

15

16

17
Taken at the Offices of Johnson & Gubler, P.C.
18 8831 West Sahara Avenue Las Vegas, Nevada
19
On Monday, December 3, 2018
20 At 4:04 p.m.
21

22

23

24
Reported by: Jane V. Efaw, CCR #601, RPR


1 Appearances:
2 For the Petitioning Creditors:
3 DAVID A. RIGGI, ESQ. Riggi Law Firm
4 5550 Painted Mirage Road Suite 320
5 Las Vegas, Nevada 89149 [phone]
6
For the Alleged Debtor:
7
FRANK L. BROYLES, ESQ.
8 222 West Las Colinas Boulevard 1650 East Tower
9 Irving, Texas 75039 [phone]
10
Also Present:
11
CALVIN WALLEN, III
12

13 * * * * * * * *
14

15

16

17

18


1 I N D E X
2

3 WITNESS PAGE
4 YVONNE JOHNSON-LUELL
5 Examination by Mr. Broyles 4
6

7

8 E X H I B I T S
9 NUMBER DESCRIPTION PAGE
10 Exhibit 9 Wund Healing Biopharmaceuticals, 4
Inc. SilverFlume Business
11 Information
12

13

14

15

16

17

18


1 MR. BROYLES: This will be 9.
2 (Whereupon Exhibit 9 was marked
3 for identification.)
4

5 Thereupon --
6 YVONNE JOHNSON-LUELL
7 was called as a witness by the Alleged Debtor, and
8 having been first duly sworn, testified as follows:
9

10 EXAMINATION
11 BY MR. BROYLES:
12 Q. Please state your name.
13 A. Yvonne Luell.
14 Q. And do you have a middle name?
15 A. M. Michelle.
16 Q. Michelle? Ms. Luell, have you ever had your
17 deposition taken before?

18 A. No.
19 Q. Are you employed?
20 A. Yes.
21 Q. Where are you employed?
22 A. Oishi's Property Management.
23 Q. Oishi?
24 A. O-i-s-h-i-s.
25 Q. What do you do for Oishi's Property


1 Management?
2 A. I do admin work.
3 Q. How long have you worked for Oishi's
4 Property Management?
5 A. About five years.
6 Q. Did you ever work for Cardiovascular
7 Biotherapeutics?
8 A. Yes.
9 Q. When did you work for -- I'll refer to it as
10 CVBT.
11 A. I cannot remember dates. It started in
12 2007, maybe 2006, and ended in 2013.
13 Q. Do you know what month in 2013 it ended?
14 A. No.
15 Q. Have you ever Mr. Calvin Wallen before
16 today?
17 A. I have not.
18 Q. So he became the CEO of CVBT in the middle
19 of 2013 and actually officed. And you never met him?
20 A. I did not. I think it was around April that
21 I met him.
22 Q. What have you done to prepare for this
23 deposition?
24 A. I've gone over CVBT's website. I've gone
25 over some materials.


1 Q. Have you talked to anybody?
2 A. Just members of this group.
3 Q. Have you ever met Dan Montano?
4 A. Yes.
5 Q. Have you ever met his wife, Vika?
6 A. Yes.
7 Q. And are you aware that Vika has paid

8

9

10 Q. You paid Vika?
11 A. Yes.
12 Q. How did that come about?
13 A. I don't understand the question.








21 BY MR. BROYLES:
22 Q. When did you hire Mr. Riggi?
23 A. I'm not aware.
24 Q. You don't know when you hired Mr. Riggi?
25 A. Exact date, no.


1 Q. Did you meet with Mr. Riggi before you hired
2 him?
3 A. No.
4 Q. Did you meet with Mr. Riggi at the time you
5 hired him?
6 A. No.
7 Q. You first met with Mr. Riggi after you hired
8 him?
9 A. Yes.
10 Q. So in terms of, did you have an
11 understanding of how much it was going to cost for
12 him to represent you?
13 A. Yes.
14 Q. And where did you get that understanding?
15 MR. RIGGI: I think I need to object to this
16 whole line of questioning.
17 MR. BROYLES: You can object.
18 MR. RIGGI: I object, and I'm directing her
19 not to answer.
20 MR. BROYLES: And why are you directing
21 her --
22 MR. RIGGI: Attorney/client privilege.
23 You're asking for communications between me and my
24 client.
25 MR. BROYLES: No, I'm not.

Case 18-15410-gs Doc 80-9 Entered 12/11/18 19:54:58 Page 8 of 8


1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3

4 In re CARDIOVASCULAR ) BIOTHERAPEUTICS, INC., )
5 ) Case No. BK-S-18-
Alleged Debtor. ) 15410-GS
6 )
)
7

8

9

10

11

12
DEPOSITION OF JOHN LAUB
13

14

15

16

17
Taken at the Offices of Johnson & Gubler, P.C.
18 8831 West Sahara Avenue Las Vegas, Nevada
19
On Tuesday, December 4, 2018
20 At 10:08 a.m.
21

22

23

24
Reported by: Jane V. Efaw, CCR #601, RPR


1 Appearances:
2 For the Petitioning Creditors:
3 DAVID A. RIGGI, ESQ. Riggi Law Firm
4 5550 Painted Mirage Road Suite 320
5 Las Vegas, Nevada 89149 [phone]
6
For the Alleged Debtor:
7
FRANK L. BROYLES, ESQ.
8 222 West Las Colinas Boulevard 1650 East Tower
9 Irving, Texas 75039 [phone]
10
Also Present:
11
CALVIN WALLEN, III
12

13 * * * * * * * *
14

15

16

17

18

19

20


1 I N D E X
2

3 WITNESS PAGE
4 JOHN LAUB
5 Examination by Mr. Broyles 4

6
7
8 E X H I B I T S
9 NUMBER DESCRIPTION PAGE
10 Exhibit 10 Alleged Debtor's Amended Notice 4
of Intent to Take the Oral
11 Deposition of Petitioning Creditor Regenerative Medicine Organization
12 and Demand for Production of Documents
13
Exhibit 11 The Board of Directors of 5
14 Cardiovascular Therapeutics Responses to Inquiries from
15 Certain Directors
16 Exhibit 12 Wound Healing Biopharmaceuticals, 18
Inc., Business Plan
17
Exhibit 13 11/24/14 Email 19
18
Exhibit 14 Amended and Restated Development 21
19 Agreement Between Cardiovascular Biotherapeutics, Inc., and
20 Proderm, LP


1 (Whereupon Exhibit 10 was marked
2 for identification.)
3

4 Thereupon --
5 JOHN LAUB
6 was called as a witness by the Alleged Debtor, and
7 having been first duly sworn, testified as follows:
8

9 EXAMINATION
10 BY MR. BROYLES:
11 Q. Please state your name.
12 A. John Laub.
13 Q. Do you have a middle name?
14 A. Kyle.
15 Q. K-y-l-e?
16 A. Yeah.
17 Q. Mr. Laub, the court reporter has handed you
18 what's been marked as Exhibit 10 right here. And
19 it's a request for production of documents, and your
20 attorney has produced this blue folder. Are these
21 all the documents that you are producing here today?
22 A. Yes, as I understand.
23 Q. And did you produce these, or did they come
24 from your attorney?
25 A. Well, we worked together on this.


1 A. Yeah. It's responses from certain
2 directors.
3 Q. And when was that document prepared?
4 A. I'm not sure when it was prepared. I don't
5 know.
6 Q. Where did you get that document?
7 A. I was made aware by the petitioning group.
8 Q. You were made aware. So where did you get
9 that document?








17 correct?
18

19 Q. When was the last time you talked to Daniel
20 Montano?
21 THE WITNESS: Is that a relevant question,
22 Counsel?
23 MR. RIGGI: Well, it's not a matter of
24 relevancy. It's a matter of the spousal privilege.
25 And I will just -- I guess we'll go over this again.


1 And I would ask that whoever else -- the non-parties
2 who aren't part of this, I would ask that there be no
3 extra noises be made from them. It's just a matter
4 of courtesy. Coughing is fine if it's involuntarily.
5 There is a multiparty privilege, which is
6 shared among my clients. And that means that none of
7 the clients can divulge any discussions they've had
8 among each other. And that does include Vika
9 Montano, and it does include Mr. Laub today.
10 Now, they've asserted -- when I say "they,"
11 I mean Daniel and Vika -- they've asserted a spousal
12 privilege and a spousal immunity. And I've reached
13 out to Dan Montano's personal attorney, Shelley
14 Krohn, asking about that, and I have not received a
15 specific answer about that yet.
16 So the question is, does the spousal
17 privilege of Vika and Dan in relation to each
18 other -- does that extend as part of the multiparty
19 privilege? I would prefer to be safe and say, yes,
20 it does. If you have any other insight, I'd be
21 willing to note that.



that that
25 probably is part of the attorney/client, slash,


1 marked as Exhibit 13. And under the subject line --
2 it's an e-mail from Dan to [e-mail]. Do
3 you know whose e-mail that is?
4 A. No, I do not.
5 Q. It references a Dr. Zimmet. Do you know who
6 Dr. Zimmet is?
7 A. No, I do not.
8 Q. Down below in the next-to-the-last
9 paragraph, it says, "John Laub's task is to manage
10 and develop a network around the world of people who
11 believe in our drugs. If we should win, then people
12 may follow us into the more difficult tasks that are
13 ahead. There are 70 diseases we might be able to
14 address." Is that referring to you, the "John Laub"?
15 A. Yes.
16 Q. And is that indeed an accurate description
17 of the tasks that you had with something Mr. Montano
18 was involved in?
19 A. It's a plan that we have.
20 Q. And when you say "it's a plan we have,"
21 you're talking about Zhittya Regenerative Medicine or
22 Zhittya Genesis Medicine and your organization;
23 correct?
24 A. Wound Healing Biopharmaceuticals.
25 ///


1 indications.
2 Q. And what indications are they exploring, to
3 your knowledge?
4 A. Parkinson's.
5 Q. Is Parkinson's also an indication that has
6 been investigated by CVBT?
7 A. I'm not aware of that.
8 Q. What other indications?
9 A. ALS.
10 Q. ALS?
11 A. Yeah. Lou Gehrig's Disease.
12 Q. What other indications?

13 A. MSA.
14 Q. What's that?
15 A. Multiple system atrophy.
16 Q. What other indications?
17 A. Let's see. Multiple sclerosis, MS.
18 Q. What else?
19 A. Probably further down the line, they'll be
20 looking at -- let's see -- probably looking into
21 heart disease.
22 Q. Where did -- and I'm going to just
23 generically refer to Zhittya Regenerative Medicine
24 and Zhittya Genesis Medicine as Zhittya. Where did
25 they get the books and records to start investigating