EX-10.28






Exhibit 10.28




Warrant Agreement No. ________



NEITHER THIS WARRANT NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON EXERCISE HEREOF HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS,
AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.




_______________, 2008 (the “Effective Date”)




BIOHEART, INC.




(Incorporated under the laws of the State of Florida)




Warrant for the Purchase of Shares of Common Stock




     FOR VALUE RECEIVED, BIOHEART, INC., a Florida corporation (the “Company”), hereby
certifies that _______________ (the “Initial Holder”), or his/her/its assigns (the
“Holder”) is entitled, subject to the provisions of this Warrant, to purchase from the
Company, up to _______________ (subject to adjustment in accordance with Section 5 below) (the
“Subject Shares”) fully paid and non-assessable shares of the Common Stock (defined below)
at a price of [$___] per share, subject to adjustment in accordance with Section 5 below (the
“Exercise Price”). This Warrant is being issued pursuant to that certain Subscription
Agreement, dated as of ____________, 2008, by and between the Company and the Initial Holder (the
“Subscription Agreement”).



     The term “Common Stock” means the Common Stock, par value $.001 per share, of the
Company as constituted on the Effective Date (the “Base Date”). The number of Subject
Shares shall be adjusted from time to time as set forth herein. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are hereinafter referred to as
“Warrant Stock.” The term “Other Securities” means any other equity or debt
securities that may be issued by the Company in addition thereto or in substitution for the Warrant
Stock. The term “Company” means and includes the corporation named above as well as (i)
any immediate or more remote successor entity resulting from the merger or consolidation of such
entity (or any immediate or more remote successor corporation of such entity) with another entity,
or (ii) any entity to which such entity (or any immediate or more remote successor corporation of
such corporation) has transferred all or substantially all of its property or assets.



     Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of
indemnification reasonably satisfactory to the Company, and upon surrender and cancellation of this
Warrant, if mutilated, the Company shall execute and deliver a new Warrant of like tenor and date.
Any such new Warrant executed and delivered shall constitute an additional contractual obligation
on the part of the Company, whether or not this Warrant so lost, stolen, destroyed or mutilated
shall be at any time enforceable by the Holder.



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     The Holder agrees with the Company that this Warrant is issued, and all the rights hereunder
shall be held subject to, all of the conditions, limitations and provisions set forth herein.



     1.     Exercise of Warrant.



          (a)     In accordance with the procedures set forth in Section 1(b) below, this Warrant will
become exercisable with respect to all of the Subject Shares on the date that is six months and one
day following the Effective Date (the “First Exercise Date”). Subject to the foregoing
exercise schedule, the Holder may exercise this Warrant, at any time, or from time to time, until
the third year anniversary of the Effective Date (the “Expiration Date”).




          (b)     During the period that this Warrant is exercisable in accordance with Sections 1(a), the
Holder may exercise this Warrant, in whole or in part, by presentation and surrender of this
Warrant to the Company at its principal office, or at the office of its stock transfer agent, if
any, together with the Warrant Exercise Form, attached hereto as Exhibit A, duly executed,
accompanied by payment (either in cash or by certified or official bank check, payable to the order
of the Company) of the Exercise Price for the number of shares specified in such form and
instruments of transfer, if appropriate, duly executed by the Holder or his, her or its duly
authorized attorney. If this Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the rights
of the Holder thereof to purchase the balance of the shares purchasable hereunder. Upon receipt by
the Company of this Warrant, together with a duly executed Warrant Exercise Form and the Exercise
Price, at its office, or by the stock transfer agent of the Company at its office, in proper form
for exercise, the Holder shall, subject to compliance with any applicable securities laws, be
deemed to be the holder of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not then be actually delivered to the
Holder.




     2.     Reservation of Shares. The Company covenants that during the term this Warrant is
exercisable, the Company will reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of Common Stock upon the exercise of this Warrant and,
from time to time, if necessary, will use its reasonable best efforts to amend its Articles of
Incorporation to provide sufficient reserves of shares of Common Stock issuable upon exercise of
the Warrant.



     3.     Fractional Shares. No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant, but the Company shall issue one additional share
of its Common Stock or Other Securities (as applicable) in lieu of each fraction of a share
otherwise called for upon exercise of this Warrant.



     4.     Transfer of Warrant.



          (a)     Subject to compliance with any applicable federal and state securities laws and the
conditions set forth in Sections 4(b) below, this Warrant may be transferred by the Holder with
respect to any or all of the shares purchasable hereunder at any time after the First Exercise
Date. No transfer of this Warrant shall be permitted on or before the First Exercise Date. Upon
surrender of this Warrant to the Company or at the office of its stock transfer agent, if any,
together with the Assignment Form, attached hereto as Exhibit B duly executed, the
Transferor Representation Letter (as defined below) duly executed, the Transferee Representation
Letter (as defined below) duly executed and funds sufficient to pay any transfer tax, the Company
shall execute and deliver a new Warrant or Warrants in the name of the



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assignee or assignees and in the denomination or denominations specified in the Assignment
Form and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so
assigned. Thereafter, this Warrant shall promptly be cancelled. This Warrant may be divided or
combined with other Warrants that carry the same rights upon presentation hereof at the office of
the Company or at the office of its stock transfer agent, if any, together with a written notice
specifying the names and denominations in which new Warrants are to be issued and signed by the
Holder hereof. Notwithstanding the foregoing, the Company shall not be required to issue a Warrant
covering less than 1,000 shares of Common Stock.




          (b)     Notwithstanding anything to the contrary set forth herein, no transfer of all or any
portion of this Warrant shall be made except for transfers to the Company, unless the Holder and
the proposed transferee each truthfully certify and provide to the Company a written representation
letter (the “Transferor Representation Letter” and the “Transferee Representation
Letter”, respectively) that such transfer is to a person that is an “accredited investor”
within the meaning of Regulation D under the Securities Act.




     5.     Anti-Dilution Provisions.



          5.1     Adjustment for Dividends in Other Securities, Property, Etc. In case at any time
or from time to time after the Base Date the shareholders of the Company shall have received, or on
or after the record date fixed for the determination of eligible shareholders, shall have become
entitled to receive without payment therefor: (a) other or additional securities or property (other
than cash) by way of dividend, (b) any cash paid or payable or (c) other or additional (or less)
securities or property (including cash) by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar corporate rearrangement, then, and in each such
case, the Holder of this Warrant, upon the exercise thereof as provided in Section 1, shall be
entitled to receive the amount of securities and property (including cash in the cases referred to
in clauses (b) and (c) above) which such Holder would hold on the date of such exercise if on the
Base Date it had been the holder of record of the number of shares of Common Stock or Other
Securities (as applicable) as constituted on the Base Date subscribed for upon such exercise as
provided in Section 1 and had thereafter, during the period from the Base Date to and including the
date of such exercise, retained such shares and/or all other additional (or less) securities and
property (including cash in the cases referred to in clauses (b) and (c) above) receivable by it as
aforesaid during such period, giving effect to all adjustments called for during such period by
this Section 5.1 and Sections 5.2 and 5.3 below.




          5.2     Adjustment for Recapitalization. If the Company shall at any time subdivide its
outstanding shares of Common Stock (or Other Securities at the time receivable upon the exercise of
the Warrant), or if the Company shall declare a stock dividend or distribute shares of Common Stock
(or Other Securities) to its shareholders, the number of shares of Common Stock (or Other
Securities, as the case may be) subject to this Warrant immediately prior to such subdivision shall
be proportionately increased and the Exercise Price shall be proportionately decreased, and if the
Company shall at any time combine the outstanding shares of Common Stock, the number of shares of
Common Stock or Other Securities subject to this Warrant immediately prior to such combination
shall be proportionately decreased and the Exercise Price shall be proportionately increased. Any
such adjustments pursuant to this Section 5.2 shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the result of a stock
dividend or distribution then the effective date for such adjustment based thereon shall be the
record date therefor.





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          5.3     Adjustment for Reorganization, Consolidation, Merger, Etc. In case of any
reorganization of the Company (or any other entity, the securities of which are at the time
receivable on the exercise of this Warrant) after the Base Date or in case after such date the
Company (or any such other entity) shall consolidate with or merge into another corporation or
convey all or substantially all of its assets to another corporation, then, and in each such case,
the Holder of this Warrant upon the exercise thereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the securities and property receivable upon the exercise of this Warrant prior
to such consummation, the securities or property to which such Holder would have been entitled upon
such consummation if such Holder had exercised this Warrant immediately prior thereto; in each such
case, the terms of this Warrant shall be applicable to the securities or property receivable upon
the exercise of this Warrant after such consummation.




          5.4     No Impairment. The Company will not, by amendment of its Articles of Incorporation
or through reorganization, consolidation, merger, dissolution, issue or sale of securities, sale of
assets or any other voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant against impairment. Without limiting the
generality of the foregoing, while this Warrant is outstanding, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly and legally issue
or sell fully paid and non-assessable shares of capital stock upon the exercise of this Warrant.




          5.5     Certificate as to Adjustments. In each case of an adjustment in the number of
shares of Warrant Stock or Other Securities receivable on the exercise of this Warrant, the Company
at its expense will promptly compute such adjustment in accordance with the terms of this Warrant
and prepare a certificate executed by an executive officer of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based. The Company will
forthwith mail a copy of each such certificate to the Holder.




          5.6     Notices of Record Date, Etc. In case:




          (a)     the Company shall take a record of the holders of its Common Stock (or Other Securities at
the time receivable upon the exercise of the Warrant) for the purpose of entitling them to receive
any dividend (other than a cash dividend at the same rate as the rate of the last cash dividend
theretofore paid) or other distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities, or to receive any other right; or




          (b)     of any capital reorganization of the Company, any reclassification of the capital stock of
the Company, any consolidation or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to another corporation; or




          (c)     of any voluntary or involuntary dissolution, liquidation or winding up of the Company,



then, and in each such case, the Company shall mail or cause to be mailed to the Holder of the
Warrant at the time outstanding a notice specifying, as the case may be, (i) the date on which a
record is to be taken for the purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up is to take place, and the time, if any, which is to be fixed, as to which the holders of
record of Common Stock (or such other securities at


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the time receivable upon the exercise of the Warrant) shall be entitled to exchange their shares of
Common Stock (or such other securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up. Such notice shall be mailed at least twenty (20) days prior to the date therein
specified and the Warrant may be exercised prior to said date during the term of the Warrant.




          6.     Legend. Unless the shares of Warrant Stock or Other Securities have been
registered under the Securities Act, upon exercise of any of the Warrants and the issuance of any
of the shares of Warrant Stock or Other Securities, all certificates representing such securities
shall bear on the face thereof substantially the following legend:





“THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER ANY STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD, CONVEYED, PLEDGED, GIFTED, ASSIGNED,
ENCUMBERED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND
ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS FROM
REGISTRATION FROM THE SECURITIES ACT AND THE RULES PROMULGATED THEREUNDER AND UNDER
APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT THE INVESTOR DELIVERS TO THE
COMPANY AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY CONFIRMING THE
AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED
TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.”



          7.     No Voting Rights as a Shareholder. This Warrant does not entitle the Holder to any
voting rights or other rights as a shareholder of the Company.




          8.     Notices. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, on the date of transmittal of
services via facsimile or telecopy to the party to whom notice is to be given (if receipt is orally
confirmed by phone and a confirming copy delivered thereafter in accordance with this Section), or
on the fifth day after mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, or via a nationally recognized overnight courier
providing a receipt for delivery and properly addressed to the applicable address as set forth in
Section 7.8 of the Subscription Agreement.




          9.     Applicable Law. The Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the State of Florida, without giving effect to the
choice of law rules thereof.




          10.     Modification of the Terms. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the Holder and the
Company.





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          11.     Venue. The parties irrevocably submit to the exclusive jurisdiction of the courts
of State
of Florida located in Miami-Dade County and federal courts of the United States for the Southern
District of Florida in respect of the interpretation and of the provisions of this Agreement and in
respect of the transactions contemplated hereby.




          12.     Waiver of Jury Trial. THE COMPANY AND THE HOLDER HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER
OF THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY THE HOLDER AND
THE COMPANY.




          13.     Payment of Certain Taxes and Charges. The Company shall not be required to issue
or deliver any certificate for shares of Common Stock or other securities upon the exercise of this
Warrant or to register any transfer of this Warrant until any applicable transfer tax and any other
taxes or governmental charges that the Company may be required by law to collect in respect of such
exercise or transfer shall have been paid, such tax being payable by Holder at the time of
surrender for the exercise or transfer.




          14.     Register. The Company or its stock transfer agent, if any, will maintain a
register containing the name and address of the Holder of this Warrant and of the holders of other
warrants of like tenor issued simultaneously hereunder. Any Holder may change its, his or her
address as shown on the warrant register by written notice to the Company requesting such change.
The Company may treat the Holder of this Warrant as the absolute owner hereof for all purposes and
shall not be bound to recognize any equitable or other claim to or interest in this Warrant on the
part of any other person.




          15.     Specific Performance. The parties hereto acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Warrant were not performed in
accordance with their specific terms or were otherwise breached. Accordingly, it is agreed that
they shall be entitled to an injunction or injunctions to prevent breaches of the provisions of
this Warrant and to enforce specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any other remedy to which
they may be entitled at law or equity.




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     IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its behalf, in its
corporate name, by its duly authorized officer, all as of the day and year first above written.



	 	 	 	 	 
	 	BIOHEART, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT A

WARRANT EXERCISE FORM




To: Bioheart, Inc.




ELECTION TO EXERCISE




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



 





 





 




(Print Name, Address and Social Security
or Tax Identification Number)



and, if such number of shares shall not be all the Subject Shares covered by the within Warrant,
that a new Warrant for the balance of the Subject Shares covered by the within Warrant be
registered in the name of, and delivered to, the undersigned at the address stated below.




	 	 	 	 	 	 	 
	Dated:

	 	 	 	Name	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Print)







			
	Address:	 	 






	 	 	 	 	 
	 	 	 
	 	
 	 
	 	(Signature) 	 
	 	 	 
	 




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EXHIBIT B




ASSIGNMENT FORM





			
	FOR VALUE RECEIVED,	 	
  






hereby sells, assigns and transfers unto





			
	Name	 	
  





(Please typewrite or print in block letters)



the right
to purchase up to ____________ shares of Common Stock of BIOHEART, INC., a Florida
corporation, pursuant to Section 4 of this Warrant, to the extent of shares as to which such right
is exercisable and does hereby irrevocably constitute and appoint Attorney, to transfer the same on
the books of the Company with full power of substitution in the premises.




DATED: ________,200__





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