NEITHER THIS SECURITY NOR THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, OR UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).  THE SECURITIES ARE RESTRICTED AND MAY NOT BE OFFERED, RESOLD, PLEDGED OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.




10% CONVERTIBLE PROMISSORY NOTE DUE JULY 23, 2010 

Sunrise, Florida

July 23, 2009

$100,000


FOR VALUE RECEIVED,
BIOHEART, INC., a Florida corporation (hereinafter called the
“Borrower”), hereby promises to pay to the order of Bruce
Meyers or registered assigns (the “Holder”) the sum of
$100,000, on July 23, 2010 (the “Maturity Date”), together with
interest accrued on the principal balance of this Note outstanding from time to
time at the rate of ten percent (10%) (the “Interest Rate”) per
annum from the date hereof (the “Issue Date”) until the
principal sum is paid in full, whether at maturity or upon acceleration or by
prepayment or conversion to the Borrower’s common shares or otherwise.
 Any amount of principal or interest on this Note which is not paid when
due shall bear interest at the rate of fifteen percent (15%) per annum
(“Default Interest”), from the due date thereof until the same
is paid.  Interest shall commence accruing on the Issue Date, shall be
computed on the basis of a 365-day year and the actual number of days elapsed
and shall be due and payable, on the Maturity Date. All payments due hereunder
shall be made in lawful money of the United States of America.  All
payments shall be made at such address as the Holder shall hereafter give to the
Borrower by written notice made in accordance with the provisions of this Note.
 Whenever any amount expressed to be due by the terms of this Note is due
on any day which is not a business day, the same shall instead be due on the
next succeeding day which is a business day.  As used in this Note, the
term “business day” shall mean any day other than a Saturday, Sunday
or a day on which commercial banks in the city of New York, New York are
authorized or required by law or executive order to remain closed.  Each
capitalized term used herein, and not otherwise defined, shall have the meaning
ascribed thereto in that certain Securities Purchase Agreement, dated the date
hereof, pursuant to which this Note was originally issued (the “Purchase
Agreement”).  Borrower may repay this Note in whole, but not in
part, at any time, together with all accrued but unpaid interest thereon, but
without penalty or premium.


This Note is subject to original
issue discount in an amount equal to five percent (5%) of the stated principal
amount hereof.


This Note is free from all
taxes, liens, claims and encumbrances with respect to the issue thereof and
shall not be subject to preemptive rights or other similar rights of
shareholders of the Borrower and will not impose personal liability upon the
holder thereof.  The obligations of the Borrower, and the rights of the
Holder, under this Note are subject to a certain Subordination 















Agreement, dated as of the date hereof, between BlueCrest Venture
Finance Master Fund Limited (“BlueCrest”), a Cayman Islands
limited company, PO Box 309, Ugland House, South Church Street, George Town,
Cayman Islands, as assignee of BlueCrest Capital Finance, L.P., and the
Holder.


ARTICLE I. CONVERSION RIGHTS


1.1


Conversion Right.  The Holder shall have the
right from time to time, as long as any principal sum of this Note shall remain
outstanding to convert all or any part of the outstanding and unpaid principal
amount of this Note into fully paid and non-assessable shares of Common Stock,
as such Common Stock exists on the Issue Date, or any shares of capital stock or
other securities of the Borrower into which such Common Stock shall hereafter be
changed or reclassified at the conversion price  (the “Conversion
Price”) determined as provided herein (a
“Conversion”); provided, however, that in no
event shall the Holder be entitled to convert any portion of this Note in excess
of that portion of this Note upon conversion of which the sum of (1) the number
of shares of Common Stock beneficially owned by the Holder and its affiliates
(other than shares of Common Stock which may be deemed beneficially owned
through the ownership of the unconverted portion of the Notes or the unexercised
or unconverted portion of any other security of the Borrower (including, without
limitation, the warrants issued by the Borrower pursuant to the Purchase
Agreement) subject to a limitation on conversion or exercise analogous to the
limitations contained herein) and (2) the number of shares of Common Stock
issuable upon the conversion of the portion of this Note with respect to which
the determination of this proviso is being made, would result in beneficial
ownership by the Holder and its affiliates of more than 4.99% of the outstanding
shares of Common Stock.  For purposes of the proviso to the immediately
preceding sentence, beneficial ownership shall be determined in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended, and
Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such
proviso.  The number of shares of Common Stock to be issued upon each
conversion of this Note shall be determined by dividing the Conversion Amount
(as defined below) by the applicable Conversion Price then in effect on the date
specified in the notice of conversion, in the form attached hereto as Exhibit A
(the “Notice of Conversion”), delivered to the Borrower by the
Holder in accordance with Section 1.4 below; provided that the Notice of
Conversion is submitted by facsimile (or by other means resulting in, or
reasonably expected to result in, notice) to the Borrower before 6:00 p.m., New
York, New York time on such conversion date (the “Conversion
Date”).  The term “Conversion Amount” means, with
respect to any conversion of this Note, the principal amount of this Note to be
converted in such conversion as set forth in the Notice of Conversion.  The
term “Determination Date” means the last business day of each
month after the Issue Date.


1.2


Conversion Price.
 The Conversion Price shall be the product of (i) the Average
Conversion Price (as defined herein) and (ii) 77.5% (subject, in each case, to
equitable adjustments for stock splits, stock dividends or rights offerings by
the Borrower relating to the Borrower’s securities or the securities of any
subsidiary of the Borrower, combinations, recapitalization, reclassifications,
extraordinary distributions and similar events).  The “Average
Conversion Price” shall mean the average of the Closing Prices for the
Borrower’s Common Stock for the five (5) Trading Days immediately preceding
the Conversion Date.  “Closing 









2 











Price” means, for the Borrower’s Common Stock,
the closing bid price per share as reported by Bloomberg, L.P. or, if the Common
Stock no longer is traded on the Nasdaq Stock Market, as reported by such other
market or exchange that is its primary trading market or as reported by a
reliable reporting service (“Reporting Service”) mutually
acceptable to Borrower and Holder.  “Trading Day” shall
mean any day on which the Common Stock is traded for any period on the Nasdaq,
or on the principal securities exchange or other securities market on which the
Common Stock is then being traded.


1.2


Authorized Shares.  If, at any time the Holder
submits a Notice of Conversion, and the Borrower does not have sufficient
authorized but unissued shares of Common Stock available to effect such
conversion in accordance with the provisions of this Article I (a
“Conversion Default”), other than by reason of Borrower not
have obtained approval of a supplemental listing application for such shares,
the Borrower shall issue to the Holder all of the shares of Common Stock which
are then available to effect such conversion and the balance shall be issued to
Holder immediately upon their availability without further notice, request or
demand by Holder. The Borrower shall use its best efforts to authorize a
sufficient number of shares of Common Stock as soon as practicable following the
earlier of (i) such time that the Holder notifies the Borrower or that the
Borrower otherwise becomes aware that there are or likely will be insufficient
authorized and unissued shares to allow full conversion thereof and (ii) a
Conversion Default.  


1.3

Method of Conversion.



(a)


Mechanics of
Conversion.  Subject to Article I, this Note may be converted by
the Holder in whole or in part at any time from time to time after the Issue
Date, by (A) submitting to the Borrower, before or after the Issue Date, a
Notice of Conversion (by facsimile or other reasonable means of communication
dispatched on the Conversion Date prior to 6:00 p.m., New York, New York time)
and (B) subject to paragraph (b) of this Section, surrendering this Note at
the principal office of the Borrower on the later to occur of the Conversion
Date or the Issue Date.  


(b)


Surrender of Note Upon
Conversion.  Notwithstanding anything to the contrary set forth
herein, upon conversion of this Note in accordance with the terms hereof, the
Holder shall not be required to physically surrender this Note to the Borrower
unless the entire unpaid principal amount of this Note is so converted.
 The Holder and the Borrower shall maintain records showing the principal
amount so converted and the dates of such conversions or shall use such other
method, reasonably satisfactory to the Holder and the Borrower, so as not to
require physical surrender of this Note upon each such conversion.  In the
event of any dispute or discrepancy, such records of the Borrower shall be
controlling and determinative in the absence of manifest error.
 Notwithstanding the foregoing, if any portion of this Note is converted as
aforesaid, the Holder may not transfer this Note unless the Holder first
physically surrenders this Note to the Borrower, whereupon the Borrower will
forthwith issue and deliver upon the order of the Holder a new Note of like
tenor, registered as the Holder (upon payment by the Holder of any applicable
transfer taxes) may request, representing in the aggregate the remaining unpaid
principal amount of this Note.  The Holder and any assignee, by acceptance
of this Note, acknowledge and agree that, by reason of the provisions of this
paragraph, following conversion 



3





 

of a portion of this Note, the unpaid and unconverted principal
amount of this Note represented by this Note may be less than the amount stated
on the face hereof.


(c)


Payment of Taxes.
 The Borrower shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of
Common Stock or other securities or property on conversion of this Note in a
name other than that of the Holder (or in street name), and the Borrower shall
not be required to issue or deliver any such shares or other securities or
property unless and until the person or persons (other than the Holder or the
custodian in whose street name such shares are to be held for the Holder’s
account) requesting the issuance thereof shall have paid to the Borrower the
amount of any such tax or shall have established to the satisfaction of the
Borrower that such tax has been paid.


(d)


Delivery of Common Stock
Upon Conversion.  Upon receipt by the Borrower from the Holder of a
facsimile transmission (or other reasonable means of communication) of a Notice
of Conversion meeting the requirements for conversion as provided in this
Section 1.3, the Borrower shall issue and deliver or cause to be issued and
delivered to or upon the order of the Holder certificates for the Common Stock
issuable upon such conversion within three (3) Trading Days after such receipt
(and, solely in the case of conversion of the entire unpaid principal amount
hereof, surrender of this Note) (such third Trading Day being hereinafter
referred to as the “Deadline”) in accordance with the terms
hereof and the Purchase Agreement.


(e)


Obligation of Borrower to
Deliver Common Stock.  Upon receipt by the Borrower of a Notice of
Conversion, the Holder shall be deemed to be the holder of record of the Common
Stock issuable upon such conversion, the outstanding principal amount and the
amount of accrued and unpaid interest on this Note shall be reduced to reflect
such conversion, and, unless the Borrower defaults on its obligations under this
Article I, all rights with respect to the portion of this Note being so
converted shall forthwith terminate except the right to receive the Common Stock
or other securities, cash or other assets, as herein provided, on such
conversion.  If the Holder shall have given a Notice of Conversion as
provided herein, the Borrower’s obligation to issue and deliver the
certificates for Common Stock shall be absolute and unconditional, irrespective
of the absence of any action by the Holder to enforce the same, any waiver or
consent with respect to any provision thereof, the recovery of any judgment
against any person or any action to enforce the same, any failure or delay in
the enforcement of any other obligation of the Borrower to the holder of record,
or any setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder of any obligation to the Borrower, and
irrespective of any other circumstance which might otherwise limit such
obligation of the Borrower to the Holder in connection with such conversion.
 The Conversion Date specified in the Notice of Conversion shall be the
Conversion Date as long as the Notice of Conversion is received by the Borrower
before 6:00 p.m., New York, New York time, on such date.


(f)


Delivery of Common Stock
by Electronic Transfer.  In lieu of delivering physical
certificates representing the Common Stock issuable upon conversion, provided
the Borrower’s transfer agent is participating in the Depository Trust
Company (“DTC”) Fast Automated Securities Transfer
(“FAST”) program, upon request of the Holder and its compliance
with the provisions contained in Section 1.1 and in this Section 1.3, the
Borrower shall use its best efforts to cause its transfer agent to
electronically transmit the Common Stock 









4 











issuable upon conversion to the Holder by crediting the account of
Holder’s Prime Broker with DTC through its Deposit Withdrawal Agent
Commission (“DWAC”) system.


(g)


Failure to Deliver Common
Stock Prior to Deadline.  If the Borrower fails to deliver to the
Holder such certificate or certificates issuable upon a Conversion on or before
the third Trading Day after the Deadline applicable to such Conversion, then
unless such failure is for a reason beyond the reasonable control of the
Borrower and without the fault of the Borrower (which for these purposes shall
include Borrower not having obtained approval of a supplemental listing
application for such shares), Borrower shall pay to the Holder, in cash, as
liquidated damages and not as a penalty, for each $5,000 of principal sum of
this Note being converted, $50 per trading day (increasing to $100 per trading
day three (3) trading days after such damages begin to accrue and increasing to
$200 per trading day six (6) trading days after such damages begin to accrue)
for each trading day after the Delivery Date until such certificates are
delivered.  Such cash amount shall be added to the principal amount of this
Note, in which event interest shall accrue thereon in accordance with the terms
of this Note and such additional principal amount shall be convertible into
Common Stock in accordance with the terms of this Note.


1.4


Concerning the Shares.  The shares of Common
Stock issuable upon conversion of this Note may not be sold or transferred
unless  (i) such shares are sold pursuant to an effective registration
statement under the Act or (ii) the Borrower or its transfer agent shall have
been furnished with an opinion of  counsel (which opinion shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions) to the effect that the shares to be sold or transferred may be
sold or transferred pursuant to an exemption from such registration or
(iii) such shares are sold or transferred pursuant to Rule 144 under the
Act (or a successor rule) (“Rule 144”) or (iv) such shares are
transferred to an “affiliate” (as defined in Rule 144) of the Borrower
who agrees to sell or otherwise transfer the shares only in accordance with this
Section and who is an Accredited Investor (as defined in the Purchase
Agreement).  Except as otherwise provided in the Purchase Agreement (and
subject to the removal provisions set forth below), until such time as the
shares of Common Stock issuable upon conversion of this Note have been
registered under the Act or otherwise may be sold pursuant to Rule 144 without
any restriction as to the number of securities as of a particular date that can
then be immediately sold, each certificate for shares of Common Stock issuable
upon conversion of this Note that has not been so included in an effective
registration statement or that has not been sold pursuant to an effective
registration statement or an exemption that permits removal of the legend, shall
bear a legend substantially in the following form, as appropriate:






“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 









5 











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.”


The legend set forth above shall
be removed and the Borrower shall issue to the Holder a new certificate therefor
free of any transfer legend if (i) the Borrower or its transfer agent shall have
received an opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a public sale
or transfer of such Common Stock may be made without registration under the Act
and the shares are so sold or transferred, (ii) such Holder provides the
Borrower or its transfer agent with reasonable assurances that the Common Stock
issuable upon conversion of this Note (to the extent such securities are deemed
to have been acquired on the same date) can be sold pursuant to Rule 144 or
(iii) in the case of the Common Stock issuable upon conversion of this Note,
such security is registered for sale by the Holder under an effective
registration statement filed under the Act or otherwise may be sold pursuant to
Rule 144 without any restriction as to the number of securities as of a
particular date that can then be immediately sold.  


1.5

Effect of Certain Events.


(a)


Adjustment Due to Merger,
Consolidation, Etc.  If, at any time when this Note is issued and
outstanding and prior to conversion of all of the principal amount of this Note,
there shall be any merger, consolidation, exchange of shares, recapitalization,
reorganization, or other similar event, as a result of which shares of Common
Stock of the Borrower shall be changed into the same or a different number of
shares of another class or classes of stock or securities of the Borrower or
another entity, or in case of any sale or conveyance of all or substantially all
of the assets of the Borrower other than in connection with a plan of complete
liquidation of the Borrower, then the Holder of this Note shall thereafter have
the right to receive upon conversion of this Note, upon the basis and upon the
terms and conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore issuable upon conversion, such stock, securities or
assets which the Holder would have been entitled to receive in such transaction
had this Note been converted in full immediately prior to such transaction
(without regard to any limitations on conversion set forth herein), and in any
such case appropriate provisions shall be made with respect to the rights and
interests of the Holder of this Note to the end that the provisions hereof
(including, without limitation, provisions for adjustment of the number of
shares issuable upon conversion of the Note) shall thereafter be applicable, as
nearly as may be practicable in relation to any securities or assets thereafter
deliverable upon the conversion hereof.  The above provisions shall
similarly apply to successive consolidations, mergers, sales, transfers or share
exchanges.


(b)


Adjustment Due to
Distribution.  If the Borrower shall declare or make any
distribution of its assets (or rights to acquire its assets) to holders of
Common Stock as a dividend, stock repurchase, by way of return of capital or
otherwise (including any dividend or distribution to the Borrower’s
shareholders in cash or shares (or rights to acquire shares) of capital stock of
a subsidiary (i.e., a spin-off)) (a “Distribution”), then the
Holder of this Note 









6 











shall be entitled, upon any conversion of this Note after the date
of record for determining shareholders entitled to such Distribution, to receive
the amount of such assets which would have been payable to the Holder with
respect to the shares of Common Stock issuable upon such conversion had such
Holder been the holder of such shares of Common Stock on the record date for the
determination of shareholders entitled to such Distribution.


(c)


Notice of
Adjustments.  Upon the occurrence of each adjustment or
readjustment of the number of shares of Common Stock to be issued in connection
with a Conversion as a result of the events described in this Section, the
Borrower, at its expense, shall promptly compute such adjustment or readjustment
and prepare and furnish to the Holder of a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based.  The Borrower shall, upon the written
request at any time of the Holder, furnish to such Holder a like certificate
setting forth (i) such adjustment or readjustment, and (ii) the number of shares
of Common Stock and the amount, if any, of other securities or property which at
the time would be received upon conversion of the Note.


ARTICLE
II. EVENTS OF
DEFAULT


Any of the following events
(each, an “Event of Default”) shall entitle the Holder to
exercise any or all of the remedies provided in Section 2.9 hereof.
  


2.1


Failure to Pay Principal or Interest.  The
Borrower fails to pay the principal hereof or interest thereon when due on this
Note, whether at maturity, upon acceleration or otherwise.


2.2


Conversion and the Shares.  Except in the case
of a failure of Borrower to issue shares of Common Stock to Holder by reason of
Borrower not having obtained approval of a supplemental listing application for
such shares, if the Borrower fails to issue shares of Common Stock to the Holder
(or announces or threatens that it will not honor its obligation to do so) upon
exercise by the Holder of the conversion rights of the Holder in accordance with
the terms of this Note (for a period of at least sixty (60) days, if such
failure is solely as a result of the circumstances governed by Section 1.3, and
the Borrower is using its best efforts to authorize a sufficient number of
shares of Common Stock as soon as practicable), fails to transfer or cause its
transfer agent to transfer (electronically or in certificated form) any
certificate for shares of Common Stock issued to the Holder upon conversion of
or otherwise pursuant to this Note as and when required by this Note, or fails
to remove any restrictive legend (or to withdraw any stop transfer instructions
in respect thereof) on any certificate for any shares of Common Stock issued to
the Holder upon conversion of or otherwise pursuant to this Note as and when
required by this Note (or makes any announcement, statement or threat that it
does not intend to honor the obligations described in this paragraph) and any
such failure shall continue uncured (or any announcement, statement or threat
not to honor its obligations shall not be rescinded in writing) for ten (10)
days after the Borrower shall have been notified thereof in writing by the
Holder.


2.3

Effect of Sale, Merger, Consolidation, Etc.  The sale, conveyance or disposition of all or substantially all of the assets of the Borrower, the effectuation by the 








7 











Borrower of a transaction or
series of related transactions in which more than 50% of the voting power of the
Borrower is disposed of, or the consolidation, merger or other business
combination of the Borrower with or into any other Person (as defined below) or
Persons when the Borrower is not the survivor.  “Person”
shall mean any individual, corporation, limited liability company, partnership,
association, trust or other entity or organization.


2.4


Breach
of Covenants.  The Borrower breaches any material covenant or other
material term or condition contained in the Purchase Agreement and such breach
continues for a period of thirty (30) days after written notice thereof to the
Borrower from the Holder.


2.5


Breach
of Representations and Warranties.  Any representation or warranty
of the Borrower made herein or in any agreement, statement or certificate given
in writing pursuant hereto or in connection herewith (including, without
limitation, the Purchase Agreement), shall be false or misleading in any
material respect when made and the breach of which has (or with the passage of
time will have) a material adverse effect on the rights of the Holder with
respect to this Note or the Purchase Agreement.


2.6


Receiver or Trustee.  The Borrower or any
subsidiary of the Borrower shall make an assignment for the benefit of
creditors, or apply for or consent to the appointment of a receiver or trustee
for it or for a substantial part of its property or business, or such a receiver
or trustee shall otherwise be appointed.


2.7


Conversion Default.  Except in the case of a
failure of Borrower to have sufficient shares of Common Stock available for
issuance to Holder by reason of Borrower not having obtained approval of a
supplemental listing application for such shares, if, at any time the Holder
submits a Notice of Conversion, and the Borrower does not have sufficient
authorized but unissued shares of Common Stock available to effect such
conversion in accordance with the provisions of this Note.


2.8


Bankruptcy.  Bankruptcy, insolvency,
reorganization or liquidation proceedings or other proceedings for relief under
any bankruptcy law or any law for the relief of debtors shall be instituted by
or against the Borrower or any subsidiary of the Borrower, unless such
proceeding shall be stayed within thirty (30) days.


2.9


Remedies Upon an Event of Default.  Upon the
occurrence and during the continuation of any Event of Default specified in this
Article III, at the option of the Holders of a majority of the aggregate
principal amount of the outstanding Notes issued pursuant to the Purchase
Agreement exercisable through the delivery of written notice to the Borrower by
such Holders (the “Default Notice”), and upon the occurrence of
an Event of Default specified in Section 2.6 or 2.8 (unless, under Section 2.8,
such proceeding shall be stayed within 30 days), the Notes shall become
immediately due and payable and the Borrower shall pay to the Holder, in full
satisfaction of its obligations hereunder, an amount equal to the sum of (x) the
then outstanding principal amount of this Note, plus (y) accrued and unpaid
interest on the unpaid principal amount of this Note to the date of payment (the
“Mandatory Prepayment Date”) plus (z) Default Interest,
if any, on the amounts referred to in clauses (x) and/or (y) (the amounts
referred to in clauses (x), (y) and (z) shall collectively be known as the 









8 












“Default Sum”) which shall immediately become due
and payable, all without demand, presentment or notice, all of which hereby are
expressly waived, together with all costs, including, without limitation, legal
fees and expenses, of collection, and the Holder shall be entitled to exercise
all other rights and remedies available at law or in equity.  The Borrower
may pay the Default Sum by delivery to the Holder of the number of shares of
Common Stock that, in the aggregate, have a value equal to the amount of the
Default Sum, using the Conversion Price for the purpose of determining such
value.  If the Borrower fails to pay the Default Sum (in cash or shares of
Common Stock) within five (5) business days of written notice that such amount
is due and payable, then the Holder shall have the right at any time, as long as
the Borrower remains in default (and as long and to the extent that there are
sufficient authorized shares), to require the Borrower, upon written notice, to
immediately issue, in lieu of the Default Amount, the number of shares of Common
Stock of the Borrower equal to the Default Amount divided by the Conversion
Price then in effect.


ARTICLE
III.
MISCELLANEOUS


3.1


Failure or Indulgence Not Waiver.  No failure
or delay on the part of the Holder in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privileges.  All rights
and remedies existing hereunder are cumulative to, and not exclusive of, any
rights or remedies otherwise available.


3.2



Notices.  Any notice herein
required or permitted to be given shall be in writing and may be personally
served or delivered by courier or sent by United States mail and shall be deemed
to have been given upon receipt if personally served (which shall include
telephone line facsimile transmission) or sent by courier or three (3) days
after being deposited in the United States mail, certified, with postage
pre-paid and properly addressed, if sent by mail.  For the purposes hereof,
the address of the Holder shall be as shown on the records of the Borrower; and
the address of the Borrower shall be Bioheart,
Inc., 13794 NW 4th Street, Suite 212, Sunrise, FL 33325, Attn:  Howard
J. Leonhardt, CEO/Chairman; facsimile number 954-845-9976.  Both the
Holder and the Borrower may change the address for service by service of written
notice to the other as herein provided.


3.3


Notice
of Corporate Events.  Except as otherwise provided below, the
Holder of this Note shall have no rights as a Holder of Common Stock unless and
only to the extent that it converts this Note into Common Stock.  


3.4


Remedies.  The Borrower acknowledges that a
breach by it of its obligations hereunder will cause irreparable harm to the
Holder, by vitiating the intent and purpose of the transaction contemplated
hereby.  Accordingly, the Borrower acknowledges that the remedy at law for
a breach of its obligations under this Note will be inadequate and agrees, in
the event of a breach or threatened breach by the Borrower of the provisions of
this Note, that the Holder shall be entitled, in addition to all other available
remedies at law or in equity, and in addition to the penalties assessable
herein, to an injunction or injunctions restraining, preventing or curing any
breach of this Note and to enforce specifically the terms and 










9 











provisions thereof, without the
necessity of showing economic loss and without any bond or other security being
required.


3.5


Amendments.  This Note and any provision hereof
may only be amended by an instrument in writing signed by the Borrower and the
Holder.  The term “Note” and all reference thereto, as used
throughout this instrument, shall mean this instrument (and the other Notes
issued pursuant to the Purchase Agreement) as originally executed, or if later
amended or supplemented, then as so amended or supplemented.


3.6


Assignability.  This Note shall be binding upon
the Borrower and its successors and assigns, and shall inure to be the benefit
of the Holder and its successors and assigns.  Each transferee of this Note
must be an “accredited investor” (as defined in Rule 501(a) of the
1933 Act).  Notwithstanding anything in this Note to the contrary, this
Note may be pledged as collateral in connection with a bona fide
margin account or other lending arrangement.


3.7


Cost
of Collection.  If default is made in the payment of this Note, the
Borrower shall pay the Holder hereof costs of collection, including reasonable
attorneys’ fees.


3.8


Governing Law.  THIS NOTE SHALL BE ENFORCED,
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.  THE BORROWER HEREBY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS
LOCATED IN BROWARD COUNTY FLORIDA WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS
NOTE, THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING.  BOTH
PARTIES FURTHER AGREE THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS
MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE
PARTY IN ANY SUCH SUIT OR PROCEEDING.   NOTHING HEREIN SHALL AFFECT EITHER
PARTY’S RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
 BOTH PARTIES AGREE THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER.  THE PARTY WHICH DOES
NOT PREVAIL IN ANY DISPUTE ARISING UNDER THIS NOTE SHALL BE RESPONSIBLE FOR ALL
FEES AND EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING
PARTY IN CONNECTION WITH SUCH DISPUTE.









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3.9


Purchase Agreement.  By its acceptance of this
Note, each Holder agrees to be bound by the applicable terms of the Purchase
Agreement.


IN WITNESS WHEREOF,
Borrower has caused this Note to be signed in its name by its duly authorized
officer this 24 day of July, 2009.





BIOHEART, INC.







By:

/s/ Howard J. Leonhardt

Howard J. Leonhardt,

Chief Executive Officer








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EXHIBIT A

NOTICE OF CONVERSION

(To be Executed by the Registered Holder

in order to Convert the Note)

The undersigned hereby irrevocably elects to convert $__________ principal amount of the Note (defined below) into shares of common stock, par value $.001 per share (“Common Stock”), of Bioheart, Inc., a Florida corporation (the “Borrower”) according to the conditions of the 10% Convertible Promissory Note of the Borrower dated as of July 23, 2009 (the “Note”), as of the date written below.  If securities are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates.  No fee will be charged to the Holder for any conversion, except for transfer taxes, if any.  A copy of the Note is attached hereto (or evidence of loss, theft or destruction thereof).

The Borrower shall electronically transmit the Common Stock issuable pursuant to this Notice of Conversion to the account of the undersigned or its nominee with DTC through its Deposit Withdrawal Agent Commission system (“DWAC Transfer”).

Name of DTC Prime Broker:____________________________________________________________________

Account Number:_____________________________________________________________________________

In lieu of receiving shares of Common Stock issuable pursuant to this Notice of Conversion by way of a DWAC Transfer, the undersigned hereby requests that the Borrower issue a certificate or certificates for the number of shares of Common Stock set forth below (which numbers are based on the Holder’s calculation attached hereto) in the name(s) specified immediately below or, if additional space is necessary, on an attachment hereto:

Name:___________________________________________________________________________________

Address:_________________________________________________________________________________

The undersigned represents and warrants that all offers and sales by the undersigned of the securities issuable to the undersigned upon conversion of the Note shall be made pursuant to registration of the securities under the Securities Act of 1933, as amended (the “Act”), or pursuant to an exemption from registration under the Act.

Date of Conversion:___________________________

Applicable Conversion Price:____________________

Number of Shares of Common Stock to be Issued Pursuant to

Conversion of the Note:______________

Signature:___________________________________

Name:______________________________________

Address:____________________________________











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