REGISTRATION RIGHTS AGREEMENT


THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into by and among BIOHEART, INC., a Florida corporation (the “Company” or “Bioheart”), and the persons who have signed a signature page(s) hereto (each, a "Lender” and collectively, the “Lenders”).


WHEREAS, pursuant to and in accordance with the terms of those certain Note Purchase Agreements, by and between the Company and each Lender (collectively, the “Purchase Agreements”), each of the Lenders have expressed a desire to purchase from the Company, upon the terms and subject to the conditions set forth in the Purchase Agreements, a convertible promissory note (collectively, the “Notes");


WHEREAS, the Notes are convertible into shares of Common Stock (hereinafter defined) of the Company and, in connection with the purchase of the Notes, the Company has agreed to issue to the Lenders 120,000 shares, in the aggregate, of the Company’s Common Stock (collectively, the “Shares”); and


WHEREAS, the Company and the Lenders desire to enter into an agreement granting the Lenders certain “piggyback” registration rights in connection with their ownership of the Shares.


NOW, THEREFORE, in consideration of the promises and mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


1. 


Certain Definitions. As used in this Agreement, the following terms shall have the following respective meanings:






“Blackout Period” means, with respect to a
registration, a period, in each case commencing on the day immediately after the
Company notifies the Lenders that they are required, because of the occurrence
of an event of the kind described in Section 4(f) hereof, to suspend offers and
sales of Registrable Securities during which the Company, in the good faith
judgment of its Board of Directors, determines (because of the existence of, or
in anticipation of, any acquisition, financing activity, or other transaction
involving the Company, or the unavailability for reasons beyond the
Company’s control of any required financial statements, disclosure of
information which is in its best interest not to publicly disclose, or any other
event or condition of similar significance to the Company) that the registration
and distribution of the Registrable Securities to be covered by such
Registration Statement, if any, would be seriously detrimental to the Company
and its stockholders and ending on the earlier of (1) the date upon which the
material non-public information commencing the Blackout Period is disclosed to
the public or ceases to be material and (2) such time as the Company notifies
the selling Holders that sales pursuant to such Registration Statement or a new
or amended Registration Statement may resume.






“Business Day” means any day of the year, other
than a Saturday, Sunday, or other day on which the Commission is required or
authorized to close.


 


“Commission” means the U. S. Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.


 


“Common Stock” means the common stock, par value
$0.001 per share, of the Company and any and all shares of capital stock or
other equity securities of: (i) the Company which are added to or exchanged or
substituted for the Common Stock by reason of the declaration of any stock
dividend or stock split, the issuance of any distribution or the
reclassification, readjustment, recapitalization or other 





























such
modification of the capital structure of the Company; and (ii) any other
corporation, now or hereafter organized under the laws of any state or other
governmental authority, with which the Company is merged, which results from any
consolidation or reorganization to which the Company is a party, or to which is
sold all or substantially all of the shares or assets of the Company, if
immediately after such merger, consolidation, reorganization or sale, the
Company or the stockholders of the Company own equity securities having in the
aggregate more than 50% of the total voting power of such other corporation.






“Effective Date” means the date of the final closing of the Offering.


 


“Exchange Act” means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.


 


“Family Member” means (a) with respect to any
individual, such individual’s spouse, any descendants (whether natural or
adopted), any trust all of the beneficial interests of which are owned by any of
such individuals or by any of such individuals together with any organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended,
the estate of any such individual, and any corporation, association, partnership
or limited liability company, all of the equity interests of which are owned by
those above described individuals, trusts or organizations and (b) with respect
to any trust, the owners of the beneficial interests of such trust.


 


“Holder” means each Lender or any such
Lender’s successors and Permitted Assignees who acquire rights in
accordance with this Agreement with respect to any Registrable Securities
directly or indirectly from a Lender or from any Permitted Assignee.






“Majority of the Holders” means at any time Holders representing a majority of the Registrable Securities.


 


“Permitted Assignee” means (a) with respect to a
partnership, its partners or former partners in accordance with their
partnership interests, (b) with respect to a corporation, its shareholders in
accordance with their interest in the corporation, (c) with respect to a limited
liability company, its members or former members in accordance with their
interest in the limited liability company, (d) with respect to an individual,
any Family Member of such party or (e) an entity that is controlled by,
controls, or is under common control with a transferor.


 


“Piggyback Registration” means, in any
registration of Common Stock referenced in Section 3(a) of this Agreement, the
right of each Holder to include the Registrable Securities of such Holder in
such registration.


 


The terms “register,”
“registered,” and “registration” refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.


 


“Registrable Common Shares” means the Shares, but
excluding (i) any Shares that have been publicly sold or are eligible to be sold
pursuant to Rule 144 of the Securities Act during any ninety (90) day period;
(ii) any Shares sold by a person in a transaction pursuant to a registration
statement filed under the Securities Act, or (iii) any Shares that are at the
time subject to an effective registration statement under the Securities Act.



 


“Registrable Securities” means the Registrable Common Shares. 


 





























“Registration Statement” has the meaning ascribed to such term in Section 3(a) hereof.






“Rule 145” means Rule 145 promulgated by the
Commission under the Securities Act, as such rule may be amended or supplemented
from time to time, or any similar successor rule that may be promulgated by the
Commission.


 


“Rule 144” means Rule 144 promulgated by the
Commission under the Securities Act, as such rule may be amended or supplemented
from time to time, or any similar successor rule that may be promulgated by the
Commission. 


 


“Rule 415” means Rule 415 promulgated by the
Commission under the Securities Act, as such rule may be amended or supplemented
from time to time, or any similar successor rule that may be promulgated by the
Commission. 


 


“Securities Act” means the Securities Act of
1933, as amended, or any similar federal statute promulgated in replacement
thereof, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.






“Shares” has the meaning ascribed to such term in the recitals of this Agreement.






“Term” has the meaning ascribed to such term in Section 2 hereof.






2. 


Term.  The term (the “Term”) of this
Agreement shall commence on the Effective Date and terminate on the date on
which all of the Registrable Securities held or entitled to be held upon
conversion of the Notes are eligible to be sold under Rule 144.


 


3. 


Registration.


 


(a)


Piggyback Registration.  If at any time during the
Term of this Agreement, the Company proposes to register for sale for cash any
of its Common Stock, for its own account or for the account of others (other
than the Holders), under the Securities Act on any form for registration
thereunder (the “Registration Statement”), other than (i) a
registration relating solely to employee benefit plans or securities issued or
issuable to employees, consultants (to the extent the securities owned or to be
owned by such consultants could be registered on Form S-8) or any of their
Family Members (including a registration on Form S-8) or (ii) a registration
relating solely to a Securities Act Rule 145 transaction or a registration on
Form S-4 in connection with a merger, acquisition, divestiture, reorganization
or similar event, the Company shall promptly (and in no event less than twenty
(20) calendar days prior to the filing of such Registration Statement) give
written notice thereof to the Holders (the “Company Notice”).
 If a Holder wishes to include any Registrable Securities as a Piggyback
Registration in the subject Registration Statement, such Holder shall provide
written notice to the Company specifying the number of Registrable Securities
desired to be included (an “Inclusion Notice”) within ten (10)
calendar days of the date of the Company Notice (the “Inclusion
Period”).  Provided that, during the Inclusion Period, the Company
receives Inclusion Notices requesting the Piggyback Registration of at least a
majority of the Registrable Securities, the Company shall include as a Piggyback
Registration all of the Registrable Securities specified in the Inclusion
Notices.  Notwithstanding the foregoing, the Company may, without the
consent of any of the Holders, withdraw such Registration Statement prior to its
becoming effective if the Company or such other shareholders have elected to
abandon the proposal to register the securities proposed to be registered
thereby.  The Company shall be obligated to file and cause the
effectiveness of only one (1) Piggyback Registration.  


 


(b)


Underwriting.  If a Piggyback Registration is for a registered public offering that is to be 





























made by an
underwriting, the Company shall, in the Company Notice, so advise the Holders of
the Registrable Securities eligible for inclusion in such Registration Statement
pursuant to Section 3(a). In such event, in addition to the conditions set forth
in Section 3(a), the right of any Holder to Piggyback Registration shall be
conditioned upon such Holder’s participation in such underwriting and the
inclusion of such Holder’s Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to sell any of their
Registrable Securities through such underwriting shall (together with the
Company and any other shareholders of the Company selling their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter selected for such underwriting by the Company or the
selling shareholders, as applicable. Notwithstanding any other provision of this
Section 3, if the underwriter or the Company determines that marketing factors
require a limitation on the number of shares of Common Stock or the amount of
other securities to be underwritten, the underwriter may exclude some or all of
the Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders (except those Holders who failed to timely elect to
include their Registrable Securities through such underwriting or have indicated
to the Company their decision not to do so), and indicate to each such Holder
the number of shares of Registrable Securities that may be included in the
registration and underwriting, if any.  The number of shares that may be
included in the registration and underwriting shall be allocated first to the
Company and then, subject to obligations and commitments existing as of the date
hereof, to all selling shareholders, including the Holders, who have requested
to sell in the registration on a pro rata basis according to the number of
shares requested to be included therein.  In the event that the underwriter
or Company determines to exclude more than 50.0% of the Registrable Securities
from the registration and underwriting in accordance with this Section 3(b),
such registration and underwriting shall not be deemed to be a Piggyback
Registration for purposes of the last sentence of Section 3(a) above. 






No
Registrable Securities excluded from the underwriting by reason of the
underwriter’s marketing limitation shall be included in such registration.
If any Holder disapproves of the terms of any such underwriting, such Holder may
elect to withdraw such Holder’s Registrable Securities therefrom by
delivering a written notice to the Company and the underwriter. The Registrable
Securities so withdrawn from such underwriting shall also be withdrawn from such
registration; provided, however, that, if by the withdrawal of
such Registrable Securities, a greater number of Registrable Securities held by
other Holders may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Holders who have included Registrable Securities in the registration the right
to include additional Registrable Securities pursuant to the terms and
limitations set forth herein in the same proportion used above in determining
the underwriter limitation. 






4. 


Registration Procedures   The Company will keep
each Holder who has delivered an Inclusion Notice reasonably advised as to the
filing and effectiveness of the Registration Statement. At its expense with
respect to the Registration Statement, the Company will:


 


(a)


use its commercially reasonable efforts to cause such Registration
Statement to become effective and remain effective for a period of six (6)
months or for such shorter period ending on the earlier to occur of (i) the sale
of all Registrable Common Shares and (ii) the availability under Rule 144 for
the Holders to sell all of the Registrable Common Shares in any ninety (90) day
period (the “Effectiveness Period”). Each Holder agrees
to furnish to the Company a completed questionnaire in the form provided by the
Company (a “Selling Shareholder Questionnaire”) not later than
three (3) Business Days following the date on which such Holder receives draft
materials of such Registration Statement;






(b)


if the Registration Statement is subject to review by the
Commission, promptly respond to all comments and diligently pursue resolution of
any comments to the satisfaction of the Commission;


 


(c)


prepare and file with the Commission such amendments and supplements to such 





























Registration Statement as may be necessary to keep such Registration Statement effective during the Effectiveness Period;


 


(d)


furnish, without charge, to each Holder of Registrable Common
Shares covered by such Registration Statement (i) such number of copies of such
Registration Statement (including any exhibits thereto other than exhibits
incorporated by reference) and each amendment and supplement thereto, as such
Holder may reasonably request, (ii) such number of copies of the prospectus
included in such Registration Statement (including each preliminary prospectus
and any other prospectus filed under Rule 424 of the Securities Act) as such
Holder may reasonably request, in conformity with the requirements of the
Securities Act, and (iii) such other documents as such Holder may require to
consummate the disposition of the Registrable Common Shares owned by such
Holder, but only during the Effectiveness Period;


 


(e)


use its commercially reasonable efforts to register or qualify
such registration under such other applicable securities laws of such
jurisdictions as any Holder of Registrable Common Shares covered by such
Registration Statement reasonably requests and as may be necessary for the
marketability of the Registrable Common Shares (such request to be made by the
time the applicable Registration Statement is deemed effective by the
Commission) and do any and all other acts and things necessary to enable such
Holder to consummate the disposition in such jurisdictions of the Registrable
Common Shares owned by such Holder; provided, that the Company shall not
be required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph, (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to general service
of process in any such jurisdiction;


 


(f)


at any time during the period commencing on the filing of the
Registration Statement and ending on the last day of the Effectiveness Period,
notify each Holder of Registrable Common Shares covered by such Registration
Statement, as promptly as practicable after becoming aware of such event, of the
happening of any event, which comes to the Company’s attention, that will
after the occurrence of such event cause the prospectus included in such
Registration Statement, if not amended or supplemented, to contain an untrue
statement of a material fact or an omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
 In such event, the Company shall promptly thereafter prepare and furnish
to such Holder a supplement or amendment to such prospectus (or prepare and file
appropriate reports under the Exchange Act) so that, as thereafter delivered to
the purchasers of such Registrable Common Shares, such prospectus shall not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, unless suspension of the use of such prospectus otherwise is
authorized herein or in the event of a Blackout Period, in which case no
supplement or amendment need be furnished (or Exchange Act filing made) until
the termination of such suspension or Blackout Period; 






(g)


use its reasonable best efforts to comply, and continue to comply
during the Effectiveness Period, in all material respects with the Securities
Act and the Exchange Act and with all applicable rules and regulations of the
Commission with respect to the disposition of all securities covered by such
Registration Statement;


 


(h)


as promptly as practicable after becoming aware of such event,
notify each Holder of Registrable Common Shares being offered or sold pursuant
to the Registration Statement of the issuance by the Commission of any stop
order or other suspension of effectiveness of the Registration Statement;


 


(i)


use its commercially reasonable efforts to cause all the
Registrable Common Shares covered by the Registration Statement to be quoted on
the NASDAQ Capital Market or such other principal securities market on which
securities of the same class or series issued by the Company are then 





























listed or traded; 


 


(j)


provide a transfer agent and registrar, which may be a single entity, for the shares of Common Stock at all times;


 


(k)


cooperate with the Holders of Registrable Common Shares being
offered pursuant to the Registration Statement to issue and deliver, or cause
its transfer agent to issue and deliver, certificates representing Registrable
Common Shares to be offered pursuant to the Registration Statement within a
reasonable time after the delivery of certificates representing the Registrable
Common Shares to the transfer agent or the Company, as applicable, and enable
such certificates to be in such denominations or amounts as the Holders may
reasonably request and registered in such names as the Holders may request;
and


 


(l)


during the Effectiveness Period, refrain from bidding for or
purchasing any Common Stock or any right to purchase Common Stock or attempting
to induce any person to purchase any such security or right if such bid,
purchase or attempt would in any way limit the right of the Holders to sell
Registrable Common Shares by reason of the limitations set forth in Regulation M
of the Exchange Act.


 


5. 


Suspension of Offers and Sales.  Each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 4(f) hereof or of the commencement of a
Blackout Period, such Holder shall discontinue the disposition of Registrable
Common Shares included in the Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4(f) hereof or notice of the end of the Blackout Period, and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company’s expense) all copies (including, without limitation, any and all
drafts), other than permanent file copies, then in such Holder’s
possession, of the prospectus covering such Registrable Common Shares current at
the time of receipt of such notice.






6. 


Registration Expenses. The Company shall pay all expenses
in connection with any registration obligation provided herein, including,
without limitation, all registration, filing, stock exchange fees, printing
expenses, all fees and expenses of complying with applicable securities laws,
and the fees and disbursements of counsel for the Company and of its independent
accountants; provided, that, in any underwritten registration, each party
shall pay for its own underwriting discounts and commissions and transfer taxes.
Except as provided in this Section and Section 9, the Company shall not be
responsible for the expenses of any attorney or other advisor employed by a
Holder.


 


7. 


Assignment of Rights. No Holder may assign its rights under
this Agreement to any party without the prior written consent of the Company;
provided, however, that any Holder may assign its rights under
this Agreement without such consent to a Permitted Assignee as long as (a) such
transfer or assignment is effected in accordance with applicable securities
laws; (b) such transferee or assignee agrees in writing to become subject to the
terms of this Agreement; and (c) such Holder notifies the Company in writing of
such transfer or assignment, stating the name and address of the transferee or
assignee and identifying the Registrable Securities with respect to which such
rights are being transferred or assigned.


 


8. 


Information by Holder. Holders included in any registration
shall furnish to the Company such information as the Company may reasonably
request in writing regarding such Holders and the distribution proposed by such
Holders including an updated Selling Shareholder Questionnaire if requested by
the Company.


 





































9. 


Indemnification.


 


(a)


In the event of the offer and sale of Registrable Securities under
the Securities Act, the Company shall, and hereby does, indemnify and hold
harmless, to the fullest extent permitted by law, each Holder, its directors,
officers, partners, each other person who participates as an underwriter in the
offering or sale of such securities, and each other person, if any, who controls
or is under common control with such Holder or any such underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, and expenses to which the Holder or any such
director, officer, partner or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement of any material fact contained in any registration statement prepared
and filed by the Company under which Registrable Securities were registered
under the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto, or
any omission to state therein a material fact required to be stated or necessary
to make the statements therein in light of the circumstances in which they were
made not misleading, and the Company shall reimburse the Holder, and each such
director, officer, partner, underwriter and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating,
defending or settling any such loss, claim, damage, liability, action or
proceeding; provided, that such indemnity agreement found in this Section
9(a) shall in no event exceed the net proceeds from the Offering, received by
the Company; and provided further, that the Company shall not be liable
in any such case (i) to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement in or omission from such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by a Holder for use in the preparation thereof or (ii)
if the person asserting any such loss, claim, damage, liability (or action or
proceeding in respect thereof) who purchased the Registrable Securities that are
the subject thereof did not receive a copy of an amended preliminary prospectus
or the final prospectus (or the final prospectus as amended or supplemented) at
or prior to the written confirmation of the sale of such Registrable Securities
to such person because of the failure of such Holder or underwriter to so
provide such amended preliminary or final prospectus and the untrue statement or
omission of a material fact made in such preliminary prospectus was corrected in
the amended preliminary or final prospectus (or the final prospectus as amended
or supplemented). Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holders, or any such
director, officer, partner, underwriter or controlling person and shall survive
the transfer of such shares by the Holder.






(b)


As a condition to including Registrable Securities in any
registration statement filed pursuant to this Agreement, each Holder agrees to
be bound by the terms of this Section 9 and to indemnify and hold harmless, to
the fullest extent permitted by law, the Company, each of its directors,
officers, partners, legal counsel and accountants and each underwriter, if any,
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director or
officer or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) that arises
out of or is based upon an untrue statement in or omission from such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished by the Holder for use in the preparation
thereof, and such Holder shall reimburse the Company, and such Holders,
directors, officers, partners, legal counsel and accountants, persons,
underwriters, or control persons, each such director, officer, and controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating, defending, or settling any such loss, claim, damage, 





























liability,
action, or proceeding; provided, however, that such indemnity
agreement found in this Section 9(b) shall in no event exceed the net proceeds
received by such Holder as a result of the sale of Registrable Securities
pursuant to such registration statement, except in the case of fraud or willful
misconduct. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer by any Holder of
such shares.






(c)


Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in this
Section (including any governmental action), such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the indemnifying party of the commencement of such action;
provided, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under this Section, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in the reasonable judgment of counsel to
such indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist or the indemnified party may have defenses not
available to the indemnifying party in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party’s reasonable judgment a conflict of interest between such indemnified
and indemnifying parties arises in respect of such claim after the assumption of
the defenses thereof or the indemnifying party fails to defend such claim in a
diligent manner, other than reasonable costs of investigation. Neither an
indemnified nor an indemnifying party shall be liable for any settlement of any
action or proceeding effected without its consent. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement, which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation.
Notwithstanding anything to the contrary set forth herein, and without limiting
any of the rights set forth above, in any event any party shall have the right
to retain, at its own expense, counsel with respect to the defense of a claim.
Each indemnified party shall furnish such information regarding itself or the
claim in question as an indemnifying party may reasonably request in writing and
as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.


 


(d)


If an indemnifying party does or is not permitted to assume the
defense of an action pursuant to Sections 9(c) or in the case of the expense
reimbursement obligation set forth in Sections 9(a) and (b), the indemnification
required by Sections 9(a) and 9(b) shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as and when
bills received or expenses, losses, damages, or liabilities are incurred.


 


(e)


If the indemnification provided for in Section 9(a) or 9(b) is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall (i) contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
as is appropriate to reflect the proportionate relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission), or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or 





























provides a
lesser sum to the indemnified party than the amount hereinafter calculated, not
only the proportionate relative fault of the indemnifying party and the
indemnified party, but also the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other, as well as any
other relevant equitable considerations. No indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.






(f)


Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.


 


(g) 


Indemnification similar to that specified in this Section (with
appropriate modifications) shall be given by the Company and each Holder of
Registrable Securities with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
governmental authority other than the Securities Act.


 


10.


Independent Nature of Each Lender’s Obligations and
Rights. The obligations of each Lender under this Agreement are several and
not joint with the obligations of any other Lender, and each Lender shall not be
responsible in any way for the performance of the obligations of any other
Lender under this Agreement. Nothing contained herein and no action taken by any
Lender pursuant hereto, shall be deemed to constitute such Lenders as a
partnership, an association, a joint venture, or any other kind of entity, or
create a presumption that the Lenders are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated by this
Agreement. Each Lender shall be entitled to independently protect and enforce
its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.


 


11. 


Miscellaneous.


 


(a)


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 Section 11(a).


 


(b)


Remedies. In the event of a breach by the Company or by a
Holder of any of their respective obligations under this Agreement, each Holder
or the Company, as the case may be, in addition to being entitled to exercise
all rights granted by law and under this Agreement, including recovery of
damages, shall be entitled to specific performance of its rights under this
Agreement. The Company and each Holder agree that monetary damages would not
provide adequate compensation for any losses incurred by reason of a breach by
it of any of the provisions of this Agreement and hereby further agrees 





























that, in
the event of any action for specific performance in respect of such breach, it
shall not assert or shall waive the defense that a remedy at law would be
adequate.






(c)


Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, Permitted Assignees, executors and administrators of the
parties hereto.


 


(d)


No Inconsistent Agreements. The Company has not entered, as
of the date hereof, and shall not enter, on or after the date of this Agreement,
into any agreement with respect to its securities that would have the effect of
impairing the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof.


 


(e)


Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof.


 


(f)


Notices, etc.  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: Chief Financial Officer


Fax:       (954) 835-1500


Phone:   (954) 845-9976






With a copy to:


Gregory Sichenzia


Sichenzia Ross Friedman Ference LLP


61 Broadway


Suite 3200


New York, NY 10006


Fax:  (212) 930-9725


Phone (212) 930-9700






(b)


 If to a Lender, to the Lender’s address set forth on the signature page hereto.










(g)


Delays or Omissions. No delay or omission to exercise any right, power or remedy 





























accruing
to any Holder, upon any breach or default of the Company under this Agreement,
shall impair any such right, power or remedy of such Holder nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of any similar breach or default thereunder occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any Holder of any breach or
default under this Agreement, or any waiver on the part of any Holder of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.






(h) 


Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.


 


(i)


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


 


(j)


Amendments. The provisions of this Agreement may be amended
at any time and from time to time, and particular provisions of this Agreement
may be waived, with and only with an agreement or consent in writing signed by
the Company and the Majority of the Holders. The Lenders acknowledge that by the
operation of this Section, the Majority Holders may have the right and power to
diminish or eliminate all rights of the Lenders under this Agreement.






(k)


Waiver of Jury Trial.  EACH LENDER 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 SUCH
LENDER AND THE COMPANY.






[SIGNATURE PAGES FOLLOW]

































This Registration Rights Agreement is hereby executed as of the date first above written.






BIOHEART, INC.










BY: /s/Howard J. Leonhardt


Name: Howard J. Leonhardt


Title: Chief Executive Officer






 






[SIGNATURE PAGE OF LENDER FOLLOWS]









































This Registration Rights Agreement is hereby executed as of the date first above written.


 






	
	



TO BE COMPLETED BY LENDER










By:/s/Bruce Meyers


Bruce Meyer






Address for Notices:






___________________________________________







___________________________________________







___________________________________________







Telephone No.: _______________________________






E-mail address: _______________________________






Tax ID: _____________________________________














TO BE COMPLETED BY LENDER










By:/s/Dana Smith


Dana Smith 






Address for Notices:






___________________________________________







___________________________________________







___________________________________________







Telephone No.: _______________________________






E-mail address: _______________________________






Tax ID: _____________________________________