EXHIBIT 10.1 SUBSCRIPTION AGREEMENT


 


 



    	
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SUBSCRIPTION AGREEMENT


 


THIS SUBSCRIPTION
AGREEMENT (this “Agreement”) is made and entered into by and between BIOHEART, INC., a Florida corporation
(the “Company” or “Bioheart”), and the undersigned Investor (individually, the "Investor”
and collectively, the “Investors”).


WHEREAS,
each of the Investors desires to purchase from the Company, upon the terms and subject to the conditions set forth herein, that
number of Units (the "Units") set forth opposite the Investor’s name on the signature page hereto, at a
purchase price per Unit set forth on the signature page hereto (the “Per Unit Purchase Price”);


WHEREAS,
each Unit consists of ten (10) shares (each such share, a “Share”) of the Company's common stock, par value
$0.001 per share (the "Common Stock") and one (1) warrant to purchase five (5) shares of the Common Stock (the
“Warrant” and, collectively with the Units and Shares, the “Securities”)


WHEREAS,
each Warrant, to be evidenced by the form of Warrant Agreement attached hereto as Exhibit A (the “Warrant Agreement”),
will have an exercise price of $0.18 and will be exercisable during the period commencing on the date that is six months and one
day following the Closing Date (defined below) and ending on the three year anniversary of the Closing Date; and


WHEREAS,each
of the Investors confirms that the Investor is an “Accredited Investor” as indicated in Section 4.2(i) hereof, and
each of the Investors hereby executes this Agreement in accordance with and subject to the terms and conditions set forth herein
for the purpose of purchasing the Units;


NOW, THEREFORE,
for and in consideration of the premises and mutual covenants, representations, warranties and agreements set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:


Article
I


OFFERING MATERIAL


 


The Investors hereby
represent and warrant that they are holders of promissory notes made by the Company, having an aggregate current principal balance
of $1,225,954(the “Promissory Notes”) and, prior to signing this Agreement, has carefully read and understood
the following items (collectively, the “Offering Materials”):


(a)     This Agreement;


(b)     The Warrant
Agreement;


(c)     The Registration
Rights Agreement, attached hereto as Exhibit B (the “Registration Rights Agreement”);


(e)     The Company’s
Annual Report on Form 10-K, as amended by Amendment No. 1 on Form 10-K/A for the each of the years ended December 31 2008 and December
31, 2009 (the “Annual Reports”);


(f)     The Company’s
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010, June 30, 2010 and September 30, 2010 (the “Quarterly
Reports”);






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(g)     The Company’s
Current Reports on Form 8-K, or Form 8-K/A filed with the Securities and Exchange Commission after January 1, 2010, and prior to
the date hereof (the “Current Reports”).


Article
II


SUBSCRIPTION
AND PAYMENT; CERTAIN TERMS AND PROCEDURES


 


Section
2.1     (a)     Each of the Investors hereby subscribes for and agrees to purchase from the Company, and the Company
agrees to sell to the Investors at the Closing (as defined below), the number of Units set forth opposite each of the Investors’
names on the signature pages hereto (the “Purchased Units”) at the Per Unit Purchase Price. The Investors have
enclosed herewith or previously delivered a check or money order payable to the order of the Company, or has made payment by wire
transfer of funds in accordance with instructions from the Company, or given to the Company written confirmation of the reduction
of the principal amount of the Promissory Note(s) it holds (any of the foreging being hereinafter referred to as the “Consideration”),
in the full amount of the product of (i) the number of Purchased Units and (ii) the Per Unit Purchase Price (the “Purchase
Price”).


(b)     The Closing
of the sale of Units (the “Closing”), shall take place at the Company’s principal executive offices (unless
the parties agree otherwise) at 5:00 PM., Eastern Standard Time, on November __, 2010 (the “Closing Date”),
or such other time(s) and place(s) as the Company and the Investors shall agree. All payments received by the Company prior to
the Closing shall be held by the Company for the benefit of the Investor providing such payment pending the Closing.


(c)     Upon Closing
of this Subscription Agreement by the Company and subject to the Company’s actual receipt of (x) the Consideration, and (y)
the Registration Rights Agreement, executed by the Investor, the Company shall issue and deliver to the Investor that number of
Shares and a Warrant to purchase that number of Shares determined as provided in the foregoing paragraph (a). In the event that
the Company issues Securities to the Investor but the Investor fails to deliver payment to the Company (whether due to a check
returned for insufficient funds or otherwise), then, to the extent that such Securities are not paid for, such Securities (and
any certificates therefore) shall for all purposes be deemed unissued, cancelled and void, and upon the Company’s request
the Investor shall promptly return and deliver to the Company any stock certificates for such unissued Shares and the original
copy of the Warrant Agreement. The Investor hereby agrees to be bound by this Agreement upon the Investor's execution and delivery
to the Company of this Agreement. The Investor's subscription for the Securities may be accepted or rejected in whole or part at
the sole discretion of the Company. In the case of the Company’s rejection of any subscription (or portion thereof), the
Investor's subscription payment, or applicable portion thereof, will be returned by the Company to the Investor promptly, without
interest. If this Subscription Agreement is not accepted and closed by the Company within three (3) days after the date this Subscription
Agreement is received by the Company, it will be deemed rejected by the Company and the Investor's payment will be returned by
the Company to the Investor unless the Investor subsequently agrees to reaffirm this Subscription Agreement to the Company, in
which case such three (3) day period will re-commence at such time.


Article
III


REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF THE COMPANY


 


Section     3.1     The
Company hereby represents and warrants to the Investor as of the date hereof and as of the Closing (except as set forth herein)
as follows:


(a)               
Organization, Good Standing and Qualification. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida and has all



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requisite corporate power and authority
to own and operate its properties and assets and to carry on its business as now conducted and as proposed to be conducted, as
contemplated by the Offering Materials. 


 


(b)               
Capitalization and Voting Rights. As of the date hereof, the authorized capital of
the Company consisted of (i) 5,000,000 shares of preferred stock, par value $0.001 (the "Preferred Stock"), none of which
are outstanding and (ii) 75,000,000 shares of Common Stock, of which 29,366,985 shares of Common Stock were issued and outstanding
as of September 30, 2010. As of September 30, 2010, there were outstanding options to purchase 2,299,313
shares of Common Stock at a weighted average exercise price of $2.84 per share and outstanding warrants to purchase 9,946,944
shares of Common Stock at a weighted average exercise price of $2.70 per share. 


 


(c)               
Authorization. All corporate action on the part of the Company, its officers, directors
and shareholders necessary for the authorization, execution and delivery of this Agreement and the Registration Rights Agreement,
the performance of all obligations of the Company hereunder and thereunder, and the authorization, issuance, sale and delivery
of the Securities being sold has been taken or will be taken prior to the acceptance and Closing of this Agreement, and this Agreement
and the Registration Rights Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance
with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable remedies, and (iii) to the extent any indemnification
provisions or agreements therein may be limited by applicable United States federal or state securities laws.


 


(d)               
Valid Issuance. The Shares when issued and paid for in compliance with the provisions
of this Agreement will be duly authorized and validly issued, fully paid, non-assessable, and, assuming that the representations
and warranties of the Investor made herein are true, complete and correct at the time of issuance, issued in compliance with United
States federal securities laws. The shares underlying the Warrant when issued and paid for in compliance with the provisions of
this Agreement and the Warrant Agreement will be duly authorized and validly issued, fully paid, non-assessable, and, assuming
that the representations and warranties of the Investor made herein are true, complete and correct at the time of issuance, issued
in compliance with federal securities laws. 


 


(e)               
Compliance with Charter Documents. Neither the execution and delivery of, nor the consummation
of any transaction or execution of any instrument contemplated by, this Agreement, nor the issuance of the Securities has constituted
or resulted in, or will constitute or result in, a default under or breach or violation of any term or provision of the Company’s
Articles of Incorporation, as amended to date, or Bylaws, as amended to date.


 


Article
IV


REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE INVESTOR


 


As an inducement
to the Company to enter into this Agreement, the Investor hereby represents and warrants to and agrees with the Company as of the
date hereof and as of the Closing (except as set forth herein) as follows:


Section 4.1     Authorization; Validity;
No Conflict; Binding Effect. 


(a)     The Investor
has the full power and authority to execute and deliver this Agreement and the Registration Rights Agreement, to perform all of
its obligations hereunder and thereunder, and to purchase, acquire and accept delivery of the Securities purchased hereunder.






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(b)     The execution
and delivery by the Investor of this Agreement and the Registration Rights Agreement, the performance by the Investor of its obligations
hereunder and thereunder, and the purchase, acquisition and acceptance of delivery of the Securities by the Investor have been
duly and validly authorized by all requisite corporate or other action on the part of the Investor.


(c)     Each of this
Agreement and the Registration Rights Agreement has been duly executed and delivered by the Investor and constitutes the legal,
valid and binding obligation of the Investor, enforceable in accordance with its terms except (i) as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting creditors' rights generally,
(ii) as may be limited by laws relating to the availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) to the extent any indemnification provisions or agreements therein may be limited by applicable United
States federal or state securities laws.


Section
4.2     Investment Representations, Warranties and Covenants.      


(a)     The Investor
is familiar with and understands (i) the current and proposed business of the Company and (ii) that the Company is a development
stage corporation with no profitability to date. The Investor has carefully considered and has, to the extent the Investor believes
such discussion necessary, discussed with the Investor’s professional legal, tax, accounting and financial advisers the suitability
of an investment in the Securities for the Investor’s particular tax and financial situation and has determined that the
Shares being subscribed for are a suitable investment for the Investor.


(b)     The Investor
acknowledges that (i) the Investor and the Investor’s attorney, accountant or other advisor(s) have had the right to request
copies of any documents, records and books pertaining to this investment and (ii) such documents, records, and books which the
Investor or such other persons have requested have been made available for inspection by such persons.


(c)     The Investor
has had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company
concerning the Securities and all such questions have been answered to the Investor’s full satisfaction.


(d)     The
Investor believes that he, she or it has received all the information that he, she or it considers necessary or appropriate for
making an investment decision with respect to the Securities, and that such Investor has had an opportunity to ask questions and
receive answers from the Company and its management regarding, the terms and conditions of this Agreement, and the business, industry,
management, technology, properties, financial condition, results of operations and prospects of the Company and to obtain additional
information necessary to verify the accuracy of any information furnished to such Investor or to which such Investor had access.
Other than for the representations and warranties made by the Company in this Agreement, the Investor is not relying upon any other
information, representation or warranty by the Company or any of its agents, including any brokers and finders, in determining
to invest in the Securities and is relying on the Investor’s own examination of the Company, including the merits and risks
involved, in making its investment decision.


(e)     The Investor
is not subscribing for the Securities as a result of or subsequent to any advertisement, article, notice, registration statement
or other communication published in any newspaper, magazine or similar media, filed with the Securities and Exchange Commission
or broadcast over television or radio or presented at any seminar or meeting to which the public was invited.


(f)     The Investor
acknowledges that the Investor has such knowledge and experience in business, financial, investment and banking matters (including,
but not limited to, investments in non-listed, restricted and non-registered securities of closely held, non-public companies)
such that (i) the 



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Investor is capable of evaluating the merits, risks and advisability of an investment in the Securities,
and (ii) the Investor recognizes and appreciates the highly speculative nature of an investment in the Securities.


(g)     The Investor
represents and warrants that he or she is a sophisticated investor, has had prior experience with investments of a similar nature
and that the Investor’s knowledge and experience in business and financial matters are such that Investor is capable of evaluating
the risk of investment in the Securities and determining the suitability of the Investor’s investment in the Securities.
The Investor represents that the Investor (i) is not disproportionately invested in illiquid investments and will not become so
by reason of this investment, (ii) has adequate means of providing for the Investor’s current financial needs and contingencies
and as such, does not require the funds invested in the Securities for the Investor’s normal expenses, (iii) is able to bear
the substantial economic risks of an investment in the Securities for an indefinite period of time, (iv) has no need for liquidity
in such investment, (v) at the present time, the Investor could afford a complete loss of such investment in the Securities, and
(vi) the Investor's investment in the Securities represents less than ten percent (10%) of the portion of the Investor's assets
that are available for use in making investments in equity securities.


(h)     The Investor
understands that the Securities are being offered and sold to it, him or her in reliance upon specific exemptions from the registration
requirements of the Securities Act and applicable state exemption(s) and that the Company is relying upon the truth and accuracy
of, and the Investor's compliance with, the Investor's representations, warranties, covenants, agreements, acknowledgments and
understandings set forth herein in order to determine the availability of such exemptions and his, her or its eligibility to acquire
the Securities.


(i)     The Investor
is an “Accredited Investor” as defined in Rule 501(d) of Regulation D, promulgated by the Securities and Exchange Commission
(the "SEC") under the Securities Act, and such qualification is based on the fact that either (i) if the Investor
is an individual, the Investor (a) as of the date of this Agreement (either individually or jointly with his or her spouse) has
a net worth in excess of $1,000,000 (exclusive of the value of the primary residence); or (b) the Investor had an individual income
in excess of $200,000 (or joint income in excess of $300,000 with his or her spouse) for each of the two most recent years and
reasonably expects an income in excess of $200,000 (or joint income in excess of $300,000 with his or her spouse) for the current
year; or (ii) if the Investor is not an individual, the Investor (a) is a corporation, Massachusetts or similar business trust,
or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000,
or (b) is an entity in which all of the equity owners are accredited investors.


(j)     The Investor
acknowledges that the Shares herein subscribed for have not been registered under the Securities Act, or under the securities laws
of any state and, therefore, cannot be sold, transferred or otherwise disposed of unless they are either registered under the Securities
Act and any applicable state securities laws or unless exemptions from such registration are available, provided that the Investor
delivers to the Company an opinion of counsel reasonably satisfactory to the Company confirming the availability of such exemption.
The Investor acknowledges that the Warrant herein subscribed for and the shares underlying the Warrant have not been registered
under the Securities Act, or under the securities laws of any state and, therefore, cannot be sold, transferred or otherwise disposed
of unless (x) they are either registered under the Securities Act and any applicable state securities laws or unless exemptions
from such registration are available, provided that the Investor delivers to the Company an opinion of counsel reasonably satisfactory
to the Company confirming the availability of such exemption, and (ii) the transfer is permitted by and conducted in accordance
with the Warrant Agreement. The Investor represents that the Investor is purchasing Securities for the Investor’s own account,
for investment and neither as a nominee, nor with a view to the resale or distribution thereof except in compliance with the Securities
Act and the restrictions contained in the immediately preceding 



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sentence. The Investor has not offered or sold any portion of the
Securities being acquired nor does the Investor have any present intention, agreement, understanding or arrangement to subdivide,
sell, distribute, assign, transfer or otherwise dispose of all or any portion of the Securities to any other person either currently
or after the passage of a fixed or determinable period of time or upon the occurrence or nonoccurrence of any predetermined event
or circumstance in violation of the Securities Act. The Investor further recognizes that, except to the extent set forth in the
Registration Rights Agreement, the Company is not assuming any obligation to register the Securities or the shares underlying the
Warrant.


(k)     The Investor
further covenants that it will not make any sale, transfer or other disposition of the Securities in violation of the Securities
Act, the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), the rules and regulations of
the SEC promulgated thereunder or any applicable state securities laws.


(l)     The Investor
has had the opportunity to review with its own tax advisors the federal, state and local tax consequences of the purchase of the
Securities. The Investor understands that the Investor (and not the Company) shall be responsible for his, her or its own tax liability
that may arise as a result of the purchase or sale of the Securities.


(m)     The
Investor acknowledges that it has had the opportunity to review the Offering Materials and the transactions contemplated thereby
with its own legal counsel. The Investor is not relying on the Company or any of the Company’s agents for legal advice with
respect to its investment in the Securities.


(n)     If this Subscription
Agreement is executed and delivered on behalf of a natural person, such person is at least 21 years of age and is purchasing the
Securities solely for such person’s own account and not for the account of any other person.


(o)     The Investor recognizes
that its investment in the Securities involves substantial risks, including loss of the entire amount of such investment, and has
taken full cognizance of and understands all of the risks related to a purchase of the Securities, including, without limitation,
the risk of losing the entire investment.


 


(p)     The Investor
has carefully reviewed and considered the risk factors included in the Company’s Annual Reports and Quarterly Reports (collectively,
the “Risk Factors”). THE INVESTOR HEREBY ACKNOWLEDGES AND CONFIRMS THAT THE INVESTOR HAS CAREFULLY REVIEWED
AND CONSIDERED THE RISKS AND UNCERTAINTIES DESCRIBED IN THE RISK FACTORS BEFORE MAKING AN INVESTMENT DECISION TO PURCHASE THE SECURITIES.


(q)     The
Investor acknowledges and agrees that the Per Unit Purchase Price at which it is purchasing Units under this Agreement may be higher
or lower from the Per Unit Purchase Price at which other investors acquire COMMON STOCK OR OTHER SECURITIES OF THE COMPANY, THAT
OTHER INVESTORS MAY RECEIVE ADDITIONAL WARRANTS IN CONNECTION WITH thePURCHASE OF COMMON STOCK OR OTHER SECURITIES OF THE COMPANY
AND THAT THE EXERCISE PRICE UNDER the WARRANTS OTHER INVESTORS RECEIVE MAY BE LESS THAT THE EXERCISE PRICE UNDER THE WARRANTS ISSUED
AS A PART OF THE UNITS.





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Section 4.1     Legends
on Stock Certificates and Warrant.


(d)     The Investor
acknowledges and understands that the certificates representing the Shares to be purchased by such Investor and the shares issuable
upon exercise of the Warrant (the “Warrant Shares”) will bear, by imprint or endorsement, appropriate legends
reflecting the status of the Shares and the Warrant Shares under the Securities Act and applicable state securities laws. The Investor
understands that the Shares and Warrant Shares shall bear a restrictive legend in, or substantially in, the form set forth below:


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.


(b)     The Investor
agrees, that so long as the restrictive legends described herein in this Agreement remain on the certificates representing the
Shares and the Warrant Shares, the Company may maintain appropriate "stop transfer" orders with respect to the Shares
and the Warrant Shares, or any portion thereof, on its stock books and ledger and with its registrar and transfer agent, if any.


Section 4.2     No
Brokers or Finders. No person has or will have, as a result of this Agreement or the transactions contemplated by this
Agreement, any right, interest or valid claim against or upon the Company for any commission, fee or other compensation as finder
or broker arising out of the transactions contemplated by this Agreement as a result of any agreement or arrangement made by or
on behalf of the Investor or by any agent or affiliate of the Investor.


Article
v


UNDERSTANDINGS
AND NOTICE TO THE INVESTOR


 


The Investor understands and acknowledges as follows:


Section 5.1     The
Securities have not been registered under the Securities Act or the securities laws of any state and are intended to be offered
and sold in in reliance on exemption from the registration requirements of the Securities Act by virtue of Regulation D and/or
other exemptions thereunder, which is in part dependent upon the truth, completeness and accuracy of the statements made by the
undersigned herein.


Section 5.2     There
is no public or other market for the Securities and no such public or other market may ever develop. The Securities purchased by
the Investor will constitute "restricted securities" as defined in Rule 144. There can be no assurance that the
undersigned will be able to sell or dispose of the Securities. It is understood that in order not to jeopardize the exemption for
the sale of the Securities, 



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any transferee may, at a minimum, be required to fulfill the investor suitability requirements thereunder,
in addition to other requirements under the Shareholders Agreement.


Section 5.3     The
Investor hereby acknowledges and agrees that the Investor’s subscription and agreement to purchase the Securities hereunder
is irrevocable by the Investor, and that, except as required by applicable law (if any) with respect to investors that are residents
of certain states, the Investor is not entitled to cancel, terminate or revoke this Agreement or any agreements of the undersigned
hereunder and that this Agreement shall survive the death or disability of the undersigned and shall be binding upon and inure
to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
The Investor hereby confirms that the Investor’s state of residence is the state set forth on the Investor’s signature
below. If the Investor is more than one person, the obligations of the Investor parties hereunder shall be joint and several and
the agreements, representations, warranties, covenants and acknowledgments herein contained shall be deemed to be made by and be
binding upon each such person and his/her heirs, executors, administrators, successors, legal representatives and permitted assigns.


Section 5.4     The
Securities are subject to restrictions on transferability and resale under applicable law and may not be transferred or resold
except as permitted under the Securities Act and applicable state securities laws, pursuant to registration or exemption therefrom
and, with respect to the Warrant and Warrant Shares, only as permitted under the Warrant Agreement. Investors should be aware that
they may be required to bear the financial risks of this investment for an indefinite period of time.


Section 5.5     The
Investor acknowledges that any information provided to the Investor and/or the Investor's legal and financial advisors with respect
to the Securities, including the information contained in the Offering Materials and all additional information furnished by the
Company to the Investor and/or his advisors in connection with the Securities, is confidential and nonpublic and agrees that all
such information shall be kept in confidence by the Investor and his advisors and neither used by the Investor nor his advisors
for the Investor’s or other person’s personal benefit (other than in connection with this Subscription Agreement),
nor disclosed to any other third party for any reason; provided, however, that this obligation shall not apply to any such information
that (i) is part of the public knowledge or literature and readily accessible at the date hereof, or (ii) becomes part of the public
knowledge or literature and readily accessible by publication (except as a result of breach of this provision).


Section 5.6     The
representations, warranties, covenants and agreements of the Investor contained herein shall be true and correct in all material
respects on and as of the date of the Closing of the sale of Securities to the Investor hereunder as if made on an as of such date
and shall survive the execution and delivery of this Agreement and the Investor's purchase of the Securities.


Section 5.7     IN
MAKING AN INVESTMENT DECISION, THE INVESTOR MUST RELY ON THE INVESTOR’S OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE
SALE OF THE SECURITIES, INCLUDING THE MERITS AND RISKS INVOLVED.


Section 5.8     The
offering and sale of the Securities are intended to be exempt from registration under the securities law of certain states in the
United States. Persons subscribing for the Securities must note that there are restrictions on the transfer of the Securities as
stipulated herein. The Investor hereby acknowledges that he or she has read the following notices and has taken full cognizance
of and understands the notices applicable to such Investor and the restrictions on the transfer of the Securities.




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RESIDENTS OF ALL U.S.
STATES:


THE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS SALE OF SECURITIES. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.


      


THE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM, AND ONLY IF PERMITTED UNDER THE STOCKHOLDER
AGREEMENT. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.


RESIDENTS OF FLORIDA


The
SECURITIES offered hereby have not been registered under the Florida Securities Act. Each offeree who is a Florida resident should
be aware that section 517.061(11)(a)(5) of the Florida Securities and Investor Protection Act provides, in RELEVANT
part, as follows: “when sales are made to five or more persons in THIS STATE, any sale in THIS STATE made pursuant to THIS
SUBSECTION is voidable by the purchaser in such sale either within 3 days after the first tender of consideration is made by SUCH
purchaser to the issuer, an agent of the issuer or an escrow agent or within 3 days after the availability of that privilege is
communicated to such purchaser, whichever occurs later.


Article
VI


CONDITIONS TO OBLIGATIONS


Section     6.3     Conditions
to Obligations of the Company. The obligation of the Company to sell and issue the Securities to the Investor at the Closing
is subject to, among other things, the fulfillment on or prior to the Closing Date of the following conditions, any of which may
be waived by the Company:


   (a)     each
of the representations and warranties of the Investor contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date as if made by such Investor on and as of such date, and each of the covenants and agreements of each
Investor contained in this Agreement to be performed on or before the Closing Date shall have been duly and fully performed on
or before such date, and, if requested by the Company, the Investor shall have delivered a certificate to the Company as to the
truth and accuracy of the statements in this paragraph;






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   (b)     no order
shall have been entered (or be in effect) by a court of competent jurisdiction which enjoins, prohibits or materially restrains
the transactions contemplated by this Agreement;


   (c)     the Investor
shall have delivered to the Company a check or money order of federal funds wire transfer (as directed and requested by the Company
prior to the Closing Date), in the amount of and in payment in full of the Purchase Price for the Securities to be purchased by
such Investor as provided hereunder;


   (d)     the Investor
shall have executed and delivered to the Company the Registration Rights Agreement.


Section     6.2     Conditions
to Obligations of the Investors. The obligation of the Investor to purchase the Securities at the Closing is subject to
the fulfillment on or prior to the Closing Date of the following conditions, any of which may be waived by such Investor:


 


   (a)     each
of the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date as if made by the Company on and as of such date, and each of the covenants and agreements of the
Company contained in this Agreement to be performed on or before the Closing Date shall have been duly and fully performed on or
before such date; and


 


  (b)     the
Company shall have obtained any and all consents (including all governmental or regulatory consents, approvals or authorizations
required in connection with the valid execution and delivery of this Agreement), permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement.


 


Article
VII


ADDITIONAL
AGREEMENTS AND PROVISIONS


 


Section 7.1     Assignment. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without
the prior written consent of the other party.


Section 7.2     Expenses. 
Any legal or other fees, costs or expenses incurred in connection with the consideration, preparation, and/or consummation of this
Agreement and the transactions contemplated hereby and thereby shall be borne and paid solely by the party incurring such fees,
costs and expenses.


Section 7.3     Pronouns
and Plurals; "Person". Whenever the context may require, any pronouns and any variations thereof used herein
shall be deemed to refer to the masculine, feminine, impersonal, singular or plural, as the identity of the person or persons may
require. As used in this Subscription Agreement, the term "person" shall mean and include an individual, entity, corporation,
trust, partnership, limited liability company or partnership, joint venture, unincorporated organization, association, governmental
authority or any agency or political subdivision thereof.


Section 7.4     Headings.
 The article, section, subsection, captions, headings and other titles preceding the text of each section, subsection or paragraph
hereof are for convenience of reference only and shall not effect the construction, meaning or interpretation of this Agreement
(or of any provision hereof).






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Section 7.5     Construction. 
The parties acknowledge that each party has reviewed this Agreement and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement (or of any provision
hereof).


Section 7.6     Waiver
of Compliance; Consents.      Any failure of any party hereto to comply with any obligation, covenant, agreement or condition
herein may be waived by the other parties hereto solely by a written instrument executed by such other parties; any such written
and signed waiver, and any failure by any party to insist upon strict compliance with any obligation, covenant, agreement or condition
herein, shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent shall be given in writing. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar),
nor shall any such waiver constitute a continuing waiver unless otherwise expressly so provided.


Section 7.7     Amendment
and Modification.      Except as set forth elsewhere in this Agreement, neither this Agreement nor any provision hereof shall
be amended waived, modified, supplemented, changed, discharged, terminated, revoked or canceled, except by a written instrument
mutually agreed upon and executed by all parties hereto.


Section 7.8     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 below. Any party may change
its address for purposes of this paragraph by giving notice of the new address to each of the other parties in the manner set forth
above.


 


(a)      If
to the Company to:


Bioheart, Inc.


13794 NW 4th Street


Suite 212


Sunrise, Florida 33325


 


Attention: Catherine Sulawske-Guck


COO and Corporate Secretary


Fax:     (954) 845-9976


Phone: (954) 835-1500


 


With a copy to:


Gregory Sichenzia


Sichenzia Ross Friedman Ference
LLP


61 Broadway


32nd Floor


New York, NY 10006


Fax: ( (212) 930-9725


Phone: (212) 930-9700


 






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(b)     If to the Investor, to the Investor’s address
set forth on the signature page hereto.


 


Section 7.9     Binding
Effect. This Agreement and all the terms and provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, estate, legal representatives, successors and permitted assigns and are not intended and shall
not be construed so as to confer any rights or benefits upon any other person or party.


Section 7.10     Dealings
in Good Faith; Best Efforts. Each party hereto agrees to act in good faith with respect to the other party or parties hereto
in exercising its rights and discharging its obligations under this Agreement. Each party further agrees to use its reasonable
best efforts to ensure that the purposes of this Agreement (and the related documents and agreements referred to herein) are realized
and to take such further actions or steps, and execute and deliver (and, as appropriate, file) such further documents, certificates,
instruments and agreements, as are reasonably necessary to implement the provisions of this Agreement and to consummate the Closing,
upon the terms and as contemplated by this Agreement.


Section 7.11     Governing
Law; Jurisdiction. The validity and effect of this Agreement, and the rights and obligations of the parties hereto, shall
be enforced, governed by, and construed in all respect in accordance with the internal laws of the State of Florida (without reference
to conflict of laws provisions). Each Party hereby irrevocably and unconditionally (a) agrees that any Action or Proceeding, at
Law or equity, arising out of or relating to this Agreement and any other agreements or the transactions contemplated hereby and
thereby shall only be brought in the state or federal courts located in Miami-Dade County, Florida, (b) expressly submits to the
personal jurisdiction and venue of such courts for the purposes thereof and (c) waives and agrees not to raise (by way of motion,
as a defense or otherwise) any and all jurisdictional, venue and convenience objections or defenses that such party may have in
such action or proceeding. Each party hereby irrevocably and unconditionally consents to the service of process of any of the aforementioned
courts. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law
or commence legal proceedings or otherwise proceed against any other party in any other jurisdiction to enforce judgments obtained
in any action or proceeding brought pursuant to this Paragraph 7.11.


Section
7.12     Severability. It is the desire and intention of the parties hereto that, whenever possible, each provision
of this Subscription Agreement be interpreted in such a manner as to be effective and valid under applicable law; if, however,
any provision of this Subscription Agreement is found or held to be invalid or unenforceable under any applicable statute or rule
of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed to be
modified to conform with such statute or rule of law. Any provision hereof that may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.


Section 7.13 Entire
Agreement. This Subscription Agreement, the Shareholders Agreement and the Warrant Agreement constitute the entire agreement
and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior discussions, understandings,
negotiations, agreements, representations, warranties, promises, assurances, covenants, arrangements and communications, both written
and oral, express or implied, of any and every nature between or among the parties hereto.


 


Section 7.14     Counterparts.
 This Subscription Agreement may be executed through the use of one or more counterparts, all of which together shall be considered
one and the same agreement, binding on all parties hereto, notwithstanding that all parties are not signatories to the same counterpart.


 






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Section 7.15     Specific
Performance. In addition to any and all other remedies that may be available at law in the event of any breach of this
Agreement, each party shall be entitled to specific performance of the agreements and obligations of the other party hereunder
and to such other injunctive or other equitable relief as may be granted by a court of competent jurisdiction.


 


Section 7.16     Waiver
of Jury Trial. THE INVESTOR AND THE COMPANY 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 LETTER AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY
MADE BY THE INVESTOR AND THE COMPANY.


 


 



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SUBSCRIPTION AGREEMENT SIGNATURE PAGE


     IN WITNESS WHEREOF,
the parties hereto have executed this Subscription Agreement as of the date this agreement is accepted, if eve, by the Company
as set forth below.


TO BE COMPLETED BY INVESTOR(s)


 


	Units subscribed:  ____________	Per Unit Purchase Price:  ____________
	 	 
	 	 
	 By: _______________________	 
	(Signature)	 
	 	 
	 By: _______________________	 
	(Signature)	 
	 	 
	 	 
	Name:   _____________________	Date:   ___________________________
	(Print Name of Individual or Entity)	 
	 	 
	 Title: _______________________	 
	Address:	 
	 	 
	 ___________________________	 
	 	 
	 ___________________________	 
	 	 
	 ___________________________	 
	 	 
	Telephone No.:  ___________________________________
	 	 
	E-mail address:  ___________________________________
	 	 
	Tax ID: _______________________	 
	 	 
	COMPANY	 
	 	 
	BIOHEART, INC	 
	 	 
	 	 
	By :  _________________________	Date Subscription Accepted:  _______________
	Name:	 
	Title:   	 
	Address:           Bioheart, Inc	 
	13794 NW 4th Street, Suite 212	 
	Sunrise, Florida 33325	 





 



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