Exhibit 10.1 


SECURITIES PURCHASE
AGREEMENT


THIS SECURITIES
PURCHASE AGREEMENT (the “Agreement”) is made as of the 7th day of October, 2014
by and between Bioheart, Inc., a Florida corporation (the “Company”), and Magna Equities II, LLC, a New
York limited liability company (the “Investor”).


WHEREAS,
the Investor is willing to lend the Company $205,000, which loan is evidenced by a promissory note, in substantially the form attached
hereto as Exhibit A (the “Note”), which is convertible into shares of the Company’s common
stock, $0.001 par value (the “Common Stock”), in accordance with the terms of this Agreement and such
Note;


WHEREAS,
upon the terms and condition stated in the Agreement and pursuant to Section 4(a)(2) of the 1933 Act (as defined below) and Rule
506 of Regulation D promulgated thereunder, the Investor wishes to purchase, and the Company wishes to sell, the Note with the
principal amount equal to $307,500 (the shares of Common Stock issuable upon conversion of the Note, collectively, the “Conversion
Shares”). The Note, together with the Conversion Shares, are referred to herein as the “Securities”
and the offering contemplated hereby is referred to herein as the “Offering”;


WHEREAS,
the parties have agreed that the obligation to repay the Note shall be an unsecured obligation of the Company; and


WHEREAS,
at the Closing (as defined below), the parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached
hereto as Exhibit B (the “Registration Rights Agreement”), pursuant to which the Company has agreed
to provide certain registration rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement),
under the 1933 Act (as defined below) and the rules and regulations promulgated thereunder, and applicable state securities laws.


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


1.                 
Purchase and Sale of Note. On the Closing Date (as hereinafter defined), subject to the terms and conditions of this
Agreement, the Investor hereby agrees to purchase, and the Company hereby agrees to sell and issue, a Note in the principal amount
of $307,500 (the “Principal Amount”).


2.                 
Purchase Price. The purchase price for the Note to be purchased by the Investor at the Closing shall be $205,000
(the “Purchase Price”). The Note will be issued with an original issue discount of approximately 33.33%.
The Investor shall pay approximately $0.6666 for each $1.00 of principal amount of the Note to be purchased at the Closing. At
the Closing, the Investor shall fund the Purchase Price by wire transfer of immediately available funds to the account specified
in writing by the Company prior to the date hereof.


3.                 
The Closing. Subject to the conditions set forth below, the purchase and sale of the Note shall take place at the
offices of Greenberg Traurig, LLP, The MetLife Building, 200




    	 



    	 



    

Park Avenue, New York, New York 10166,
on the date hereof (the “Closing” and the “Closing Date”). At the Closing,
the Company shall deliver to the Investor: (i) this Agreement duly executed by the Company, (ii) the Note in the Principal Amount
duly executed by the Company and registered in the name of the Investor and (iii) the Registration Rights Agreement duly executed
by the Company. At the Closing, the Investor shall deliver to the Company (i) this Agreement duly executed by the Investor and
(ii) the Registration Rights Agreement duly executed by the Investor.


4.                 
Closing Conditions; Certain Covenants.


4.1             
Conditions to the Investor’s Obligations. The obligation of the Investor to purchase the Note to be issued
to the Investor at the Closing is subject to the fulfillment, to the Investor’s reasonable satisfaction, prior to or at the
Closing, of each of the following conditions:


(a)               
Representations and Warranties. The representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on the date hereof.


(b)              
Note. At the Closing, the Company shall have tendered to the Investor the Note.


(c)               
Registration Rights Agreement. The Company shall have duly executed and delivered the Registration Rights Agreement
to the Investor.


(d)              
No Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened
or proposed before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit or obtain substantial
damages in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.


(e)               
Proceedings and Documents. All proceedings in connection with the transactions contemplated hereby and all documents
and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Investor, and the Investor
shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request.


4.2             
Conditions to the Company’s Obligations. The obligation of the Company to sell and issue the Note to the Investor
at the Closing is subject to the fulfillment, to the Company’s reasonable satisfaction, prior to or at the Closing, of each
of the following conditions:


(a)               
Representations and Warranties. The representations and warranties of the Investor contained in this Agreement shall
be true and correct in all material respects on the date hereof.


(b)              
Purchase Price. At the Closing, the Investor shall have tendered to the Company the Purchase Price (less the amounts
to be withheld pursuant to Section 10.12) by wire




    	2



    	 



    

transfer of immediately available funds
to the account specified in writing by the Company prior to the date hereof.


(c)               
Registration Rights Agreement. The Investor shall have duly executed and delivered the Registration Rights Agreement
to the Company.


(d)              
No Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened
or proposed before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit, or obtain substantial
damages in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.


(e)               
Proceedings and Documents. All proceedings in connection with the transactions contemplated hereby and all documents
and instruments incident to such transactions shall be satisfactory in substance and form to the Company and the Company shall
have received all such counterpart originals or certified or other copies of such documents as the Company may reasonably request.


4.3             
Securities Law Disclosure; Publicity. The Company shall (a) by 9:00 a.m. (New York City time) on the business day
immediately following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby
and (b) issue a Current Report on Form 8-K disclosing the material terms of the transactions contemplated hereby, and including
the Transaction Documents as exhibits thereto, within the time required by the 1934 Act. From and after the issuance of such press
release, the Company represents to the Investor that the Company shall have publicly disclosed all material, non-public information
delivered to the Investor by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees
or agents in connection with the transactions contemplated by the Transaction Documents. The Company shall afford the Investor
and its counsel with a reasonable opportunity to review and comment upon, shall consult with the Investor and its counsel on the
form and substance of, and shall give due consideration to all such comments from the Investor or its counsel on, any press release,
Commission filing or any other public disclosure made by or on behalf of the Company relating to the Investor, its purchases hereunder
or any aspect of the Transaction Documents or the transactions contemplated thereby, prior to the issuance, filing or public disclosure
thereof, and the Company shall not issue, file or publicly disclose any such information to which the Investor shall object. For
the avoidance of doubt, the Company shall not be required to submit for review any such disclosure contained in periodic reports
filed with the Commission under the Exchange Act if it shall have previously provided the same disclosure for review in connection
with a previous filing.


4.4             
Legends. The Securities may only be disposed of in compliance with state and federal securities laws. In connection
with any transfer of Securities other than pursuant to an effective registration statement or Rule 144 under the 1933 Act (“Rule
144”), to the Company or to an affiliate of the Investor or in connection with a pledge, the Company may require
the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to
the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer
does not require registration of such transferred Securities under the 1933 Act. The Investor understands that the certificate
or other instrument representing the Note and, the stock certificates representing the




    	3



    	 



    

Conversion Shares, except as set forth
below, shall bear any legends as required by applicable state securities or “Blue Sky” laws in addition to a restrictive
legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):


NEITHER THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE [CONVERTIBLE]
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT
BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM
REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD
PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH
A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


The Company shall
use its reasonable best efforts to cause its transfer agent to remove the legend set forth above and to issue a certificate without
such legend to the holder of the Securities upon which it is stamped, or to issue to such holder by electronic delivery at the
applicable balance account at the Depository Trust Company (“DTC”), unless otherwise required by state
securities or “blue sky” laws, at such time as (i) such Securities are registered for resale under the 1933 Act, (ii)
in connection with a sale, assignment or other transfer, such holder provides the Company with an opinion of counsel, in a form
generally acceptable to the Company’s legal counsel, to the effect that such sale, assignment or transfer of the Securities
may be made without registration under the 1933 Act, or (iii) such holder provides the Company and its legal counsel with reasonable
assurance in writing that the Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A. In furtherance
of the foregoing, the Company agrees that, following the Effective Date or at such time as such legend is not required pursuant
to this Section 4.4, the Company shall, no later than three Trading Days following the delivery by the Investor to the Company
or the Company’s transfer agent of a certificate representing Conversion Shares issued with a restrictive legend (such third
Trading Day, the “Legend Removal Date”), either: (A) issue and deliver (or cause to be issued and delivered)
to the Investor a certificate representing such Conversion Shares that is free from all restrictive and other legends or (B) cause
the Company’s transfer agent to credit the Investor’s or its designee’s account at DTC through its Deposit/Withdrawal
at Custodian (DWAC) system with a number of shares of Common Stock equal to the number of Conversion Shares represented by the
certificate so delivered by the Investor. If the Company fails on or prior to the Legend Removal Date to either (i) issue and deliver
(or cause to be issued and delivered) to the Investor a certificate representing the Conversion Shares that is free from all restrictive
and other legends or (ii) cause the Company’s transfer agent to credit the balance account of the Investor or its designee
at DTC through its Deposit/Withdrawal at Custodian (DWAC) system with a number of shares of




    	4



    	 



    

Common Stock equal to the number of
Conversion Shares represented by the certificate delivered by the Investor pursuant hereto, then, in addition to all other remedies
available to the Investor, the Company shall pay in cash to the Investor on each day after the Legend Removal Date that the issuance
or credit of such shares is not timely effected an amount equal to 2.0% of the product of (A) the sum of the number of Conversion
Shares not issued to the Investor on a timely basis and to which the Investor is entitled and (B) the VWAP for the five Trading
Day period immediately preceding the Legend Removal Date. In addition to the foregoing, if the Company fails to so properly deliver
such unlegended certificates or so properly credit the account of the Investor or its designee at DTC by the Legend Removal Date,
and if on or after the Legend Removal Date the Investor purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Investor of shares of Common Stock that the Investor anticipated receiving from
the Company without any restrictive legend, then the Company shall, within three Trading Days after the Investor’s request,
pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased, at which point the Company’s obligation to deliver a certificate or credit the
Investor’s or its designee’s account at DTC for such shares of Common Stock shall terminate and such shares shall be
cancelled.


5.                 
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure
Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure
contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and
warranties to the Investors:


5.1             
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. The Company is duly qualified to transact business and is in good standing
in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.


5.2             
Capitalization and Voting Rights. The authorized capital stock of the Company and the shares thereof issued and outstanding
were as set forth in the Public Reports as of the dates reflected therein. All of the outstanding shares of Common Stock have been
duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in the Public Reports, this Agreement
and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register
the sale of any securities under the Securities Act. Except as set forth in the Public Reports, no shares of Common Stock are entitled
to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements
by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible
into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary course
of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except for customary transfer
restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Public Reports,
the Company is not a party to, and it has no knowledge of, any agreement restricting the voting or transfer of any shares of the
capital stock of the Company. Except as set




    	5



    	 



    

forth in the Public Reports, the offer
and sale of all capital stock, convertible or exchangeable securities, rights, warrants or options of the Company issued prior
to the Closing Date complied with all applicable federal and state securities laws, and no stockholder has any right of rescission
or damages or any “put” or similar right with respect thereto that would have a Material Adverse Effect. Except as
set forth in the Public Reports, there are no securities or instruments containing anti-dilution or similar provisions that will
be triggered by the Note, this Agreement or the Registration Rights Agreement or the consummation of the transactions described
herein or therein.


5.3             
Authorization; Enforcement. All corporate action on the part of the Company, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Agreement, the Note, the Registration Rights Agreement (the “Transaction
Documents”) and the performance of all obligations of the Company hereunder and thereunder, and the authorization
(or reservation for issuance), sale and issuance of the Note, and the Common Stock into which the Note is convertible or exercisable,
have been taken on or prior to the date hereof. Each of the Transaction Documents has been duly executed by the Company and, when
delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except: (i) as limited by general equitable principles and 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) insofar as indemnification and contribution provisions may be limited by applicable law.


5.4             
Valid Issuance of the Conversion Shares; Reservation of Shares. The Note is duly authorized and, when issued and
paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, and free and clear of
all Liens imposed by the Company other than restrictions on transfer under this Agreement and under applicable state and federal
securities laws. The Conversion Shares when issued and delivered in accordance with the terms of this Agreement and the Note for
the consideration expressed herein and therein, will be duly and validly issued, fully paid and non-assessable and free and clear
of all Liens imposed by the Company other than restrictions on transfer under this Agreement and under applicable state and federal
securities laws. The Company has reserved from its duly authorized capital stock a sufficient number of shares of Common Stock
for issuance of the Conversion Shares.


5.5             
Offering. Subject to the truth and accuracy of the Investor’s representations set forth in Section 6 of this
Agreement, the offer and issuance of the Note, together with the Conversion Shares, as contemplated by this Agreement are exempt
from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”), and the
qualification or registration requirements of state securities laws or other applicable blue sky laws. Neither the Company nor
any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemptions.


5.6             
Public Reports. The Company is current in its filing obligations under the 1934 Act, including without limitation
as to its filings of Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (collectively,
the “Public




    	6



    	 



    

Reports”). The
Public Reports do not contain any untrue statement of a material fact or omit to state any fact necessary to make any statement
therein not misleading. The financial statements included within the Public Reports for the fiscal year ended December 31, 2013
and for each quarterly period thereafter (the “Financial Statements”) have been prepared in accordance with
generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated
and with each other, except that unaudited Financial Statements may not contain all footnote required by generally accepted accounting
principles. The Financial Statements fairly present, in all material respects, the financial condition and operating results of
the Company as of the dates, and for the periods, indicated therein, subject in the case of unaudited Financial Statements to
normal year-end audit adjustments.


5.7             
Compliance With Laws. The Company has not violated any law or any governmental regulation or requirement which violation
has had or would reasonably be expected to have a Material Adverse Effect on its business and the Company has not received written
notice of any such violation.


5.8             
Violations. The consummation of the transactions contemplated by the Transaction Documents and all other documents
and instruments required to be delivered in connection therewith will not result in or constitute any of the following: (a) a violation
of any provision of the certificate of incorporation, bylaws or other governing documents of the Company; (b) a violation of any
provisions of any applicable law or of any writ or decree of any court or governmental instrumentality; (c) a default or an event
that, with notice or lapse of time or both, would be a default, breach, or violation of a lease, license, promissory note, conditional
sales contract, commitment, indenture, mortgage, deed of trust, or other agreement, instrument, or arrangement to which the Company
is a party or by which the Company or its property is bound; (d) an event that would permit any party to terminate any agreement
or to accelerate the maturity of any indebtedness or other obligation of the Company; or (e) the creation or imposition of any
lien, pledge, option, security agreement, equity, claim, charge, encumbrance or other restriction or limitation on the capital
stock or on any of the properties or assets of the Company.


5.9             
Consents; Waivers. No consent, waiver, approval or authority of any nature, or other formal action, by any Person,
firm or corporation, or any agency, bureau or department of any government or any subdivision thereof, not already obtained, is
required in connection with the execution and delivery of the Transaction Documents by the Company or the consummation by the Company
of the transactions provided for herein and therein.


5.10         
Sarbanes-Oxley Act. The Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act
of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission
thereunder that are effective as of the date hereof.


5.11         
Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against
or affecting the Company, the Common Stock or any of the Company’s officers or directors in their capacities as such.




    	7



    	 



    

5.12         
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial
statements included within the Public Reports, except as specifically disclosed in a subsequent Public Report filed prior to the
date hereof: (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result
in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not
required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock and (v) the Company has not issued any equity securities to any officer, director or affiliate, except pursuant
to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment
of information. Except for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its
Subsidiaries or their respective businesses, properties, operations, assets or financial condition, that would be required to be
disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been
publicly disclosed at least one Trading Day prior to the date that this representation is made.


5.13         
Intellectual Property. The Company has, or has rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights as described in the Public Reports as necessary or required for use in connection with their respective businesses
and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
The Company has not received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated
or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.
The Company has not received, since the date of the latest audited financial statements included within the Public Reports, a written
notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any
Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company,
all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual
Property Rights. The Company has taken reasonable security measures to protect the secrecy, confidentiality and value of all of
their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


5.14         
Registration Rights. Other than the Investor or as set forth in the Public Reports, no Person has any right to cause
the Company to effect the registration under the 1933 Act of any securities of the Company.


5.15         
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither




    	8



    	 



    

it nor any other Person acting on its
behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute
material, non-public information. The Company understands and confirms that the Investor will rely on the foregoing representation
in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Investor
regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the
Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they
were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement
taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when
made, not misleading. The Company acknowledges and agrees that the Investor does not make nor has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section 6 hereof.


5.16         
No Integrated Offering. Assuming the accuracy of the Investor’s representations and warranties set forth in
Section 6, neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this
offering of the Securities to be integrated with prior offerings by the Company for purposes of (i) the 1933 Act which would require
the registration of any such securities under the 1933 Act, or (ii) any applicable shareholder approval provisions of any Trading
Market on which any of the securities of the Company are listed or designated.


5.17         
Seniority. As of the Closing Date, no Indebtedness or other claim against the Company is senior to the Note in right
of payment, whether with respect to interest or upon liquidation or dissolution, or otherwise, other than indebtedness secured
by purchase money security interests (which is senior only as to underlying assets covered thereby) and capital lease obligations
(which is senior only as to the property covered thereby).


5.18         
Bankruptcy Status; Indebtedness. The Company has no current intention or expectation to file for reorganization or
liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 5.18
sets forth as of the date hereof all outstanding secured and unsecured Indebtedness (as defined below) of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $25,000 (other than trade accounts payable incurred in
the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness
of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course
of business; and (z) the present value of any lease payments in excess of $25,000 due under leases required to be capitalized in
accordance with GAAP. The Company is not in default with respect to any Indebtedness.




    	9



    	 



    

5.19         
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s
placement agent in connection with the placement of the Securities.


5.20         
Acknowledgment Regarding Investor’s Purchase of Securities. The Company acknowledges and agrees that the Investor
is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated
hereby and that the Investor is not (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate”
(as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner”
of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar
capacity) with respect to this Agreement and the transactions contemplated hereby, and any advice given by the Investor or any
of its representatives or agents in connection with this Agreement and the transactions contemplated hereby is merely incidental
to the Investor’s purchase of the Securities. The Company further represents to the Investor that the Company’s decision
to enter into this Agreement, the Registration Rights Agreement, the Note and the other transaction documents to which it is a
party has been based solely on the independent evaluation by the Company and its representatives.


5.21         
No General Solicitation. Neither the Company, nor any of its Subsidiaries or affiliates, nor any Person acting on
its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D)
in connection with the offer or sale of the Securities.


5.22         
Application of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison
pill (including, without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover
provision under its articles of incorporation, bylaws or other organizational documents, as amended to date, or the laws of the
jurisdiction of its incorporation or otherwise which is or could become applicable to the Investor as a result of the transactions
contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and the Investor’s
ownership of the Securities. The Company and its board of directors have taken all necessary action, if any, in order to render
inapplicable any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of shares of
Common Stock or a change in control of the Company or any of its Subsidiaries.


5.23         
Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries nor any director, officer, agent, employee
or other Person acting on behalf of the Company or any of its Subsidiaries has, in the course of its actions for, or on behalf
of, the Company or any of its Subsidiaries (i) used any corporate funds for any unlawful contribution,




    	10



    	 



    

gift, entertainment or other unlawful
expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment
to any foreign or domestic government official or employee.


5.24         
Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or
any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company
in its Public Reports and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.


5.25         
Investment Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an
“investment company,” an affiliate of an “investment company,” a company controlled by an “investment
company” or an “affiliated person” of, or “promoter” or “principal underwriter” for,
an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.


5.26         
U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and
so long as any of the Securities are held by the Investor, shall become, a U.S. real property holding corporation within the meaning
of Section 897 of the Code, and the Company and each Subsidiary shall so certify upon the Investor’s request.


5.27         
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act
of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or
controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five
percent (25%) or more of the total equity of a bank or any equity that is subject to the BHCA and to regulation by the Federal
Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or
policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


5.29         
Shell Company Status. The Company is not, and has never been, an issuer identified in, or subject to, paragraph (i)
of Rule 144.


5.30         
Public Utility Holding Act. Neither the Company nor any of its Subsidiaries is a “holding company,” or
an “affiliate” of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.


5.31         
Federal Power Act. Neither the Company nor any of its Subsidiaries is subject to regulation as a “public utility”
under the Federal Power Act, as amended.


5.32         
Illegal or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to
the best of the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors,
employees, agents




    	11



    	 



    

or other representatives of the Company
or any of its Subsidiaries or any other business entity or enterprise with which the Company or any Subsidiary is or has been affiliated
or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services,
whether or not in contravention of applicable law, (a) as a kickback or bribe to any Person or (b) to any political organization,
or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving
the direct or indirect use of funds of the Company or any of its Subsidiaries.


5.33         
Money Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the
USA Patriot Act of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without
limitation, the laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets
Control, including, without limitation, (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001));
and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.


5.34         
No Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive
officer, other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of
the Company's outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is
defined in Rule 405 under the 1933 Act) connected with the Company in any capacity at the time of sale (each, an “Issuer
Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i)
to (viii) under the 1933 Act (a “Disqualification Event”), except for a Disqualification Event covered
by Rule 506(d)(2) or (d)(3) under the 1933 Act. The Company has exercised reasonable care to determine whether any Issuer Covered
Person is subject to a Disqualification Event.


6.                 
Representations and Warranties of the Investor. The Investor hereby represents, warrants and covenants that:


6.1             
Authorization. The Investor has full power and authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby and has taken all action necessary to authorize the execution
and delivery of this Agreement and the Registration Rights Agreement, the performance of its obligations hereunder and thereunder
and the consummation of the transactions contemplated hereby and thereby.


6.2             
No Public Sale or Distribution. The Investor is (i) acquiring the Note and (ii) upon conversion of the Note will
acquire the Conversion Shares for its own account, not as a nominee or agent, and not with a view towards, or for resale in connection
with, the public sale or distribution of any part thereof, except pursuant to sales registered or exempted under the 1933 Act.
The Investor is acquiring the Securities hereunder in the ordinary course of its business. The Investor does not presently have
any contract, agreement, undertaking, arrangement or understanding, directly or indirectly, with any individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization




    	12



    	 



    

and a government or any department or
agency thereof (a “Person”) to sell, transfer, pledge, assign or otherwise distribute any of the Securities.


6.3             
Accredited Investor Status; Investment Experience. The Investor is an “accredited investor” as that term
is defined in Rule 501(a) of Regulation D. The Investor can bear the economic risk of its investment in the Securities, and has
such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment
in the Securities.


6.4             
Reliance on Exemptions. The Investor understands that the Securities are being offered and sold to it in reliance
on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company
is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and
the eligibility of the Investor to acquire the Securities.


6.5             
Information. The Investor and its advisors, if any, have been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer and sale of the Securities which have been requested
by the Investor. The Investor and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither
such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or its representatives
shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained
herein. The Investor understands that its investment in the Securities involves a high degree of risk. The Investor has sought
such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its
acquisition of the Securities. The Investor is relying solely on its own accounting, legal and tax advisors, and not on any statements
of the Company or any of its agents or representatives, for such accounting, legal and tax advice with respect to its acquisition
of the Securities and the transactions contemplated by this Agreement.


6.6             
No Governmental Review. The Investor understands that no United States federal or state agency or any other government
or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability
of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


6.7             
Validity; Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Investor is a party
have been duly and validly authorized, executed and delivered on behalf of the Investor and shall constitute the legal, valid and
binding obligations of the Investor enforceable against the Investor in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and
remedies. The execution, delivery and performance by the Investor of this Agreement and each Transaction Document to which the
Investor is a party and the consummation by the Investor of the transactions contemplated hereby and thereby will not (i) result
in a violation of the




    	13



    	 



    

organizational documents of the Investor
or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which the Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities or “Blue Sky” laws) applicable to the Investor, except in the case of clause (ii) above,
for such conflicts, defaults or rights which would not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Investor to perform its obligations hereunder.


6.8             
Organization and Standing. The Investor is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of New York.


7.                 
Use of Proceeds. The Investor acknowledges that the Company will use the proceeds received from the purchase of the
Note for, among other things, (i) costs and expenses relating to the sale of the Note to the Investor and (ii) general working
capital purposes.


8.                 
Rule 144 Availability; Public Information. At all times during the period commencing on the six (6) month anniversary
of the Closing Date and ending at such time that all of the Securities can be sold without the requirement to be in compliance
with Rule 144(c)(1) under the 1933 Act and otherwise without restriction or limitation pursuant to Rule 144, the Company shall
use its reasonable best efforts to ensure the availability of Rule 144 to the Investor with regard to the Conversion Shares, including
compliance with Rule 144(c)(1) under the 1933 Act. If, (i) at any time during the period commencing from the six (6) month anniversary
of the Closing Date and ending on the first anniversary of the Closing Date, the Company shall fail for any reason to satisfy the
current public information requirement under Rule 144(c) under the 1933 Act (a “Public Information Failure”),
or (ii) the Company shall fail to take such action as is reasonably requested by the Investor to enable the Investor to sell the
Conversion Shares pursuant to Rule 144 (including, without limitation, delivering all such legal opinions, consents, certificates,
resolutions and instructions to the Company’s transfer agent as may be reasonably requested from time to time by the Investor
and otherwise fully cooperate with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144),
then, in either case, in addition to the Investor’s other available remedies, the Company shall pay to a Investor, in cash,
as liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities,
an amount in cash equal to two percent (2.0%) of the aggregate Purchase Price of the Investor’s Securities on the day of
a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter
until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is no
longer required for the Investor to transfer the Shares or the Warrant Shares pursuant to Rule 144. The payments to which the Investor
shall be entitled pursuant to this Section 8 are referred to herein as “Rule 144 Failure Payments.”
Rule 144 Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Rule 144 Failure
Payments are incurred and (ii) the third (3rd) Trading Day after the event or failure giving rise to the Rule 144 Failure Payments
is cured.


9.                 
Indemnification. In consideration of the Investor’s execution and delivery of this Agreement and acquiring
the Securities hereunder and in addition to all of the Company’s other obligations under this Agreement, the Registration
Rights Agreement and the Note, the Company




    	14



    	 



    

shall defend, protect, indemnify and
hold harmless the Investor and each holder of any Securities and all of their stockholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including,
without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation
or warranty made by the Company in this Agreement or the Registration Rights Agreement, (b) any breach of any covenant, agreement
or obligation of the Company contained in this Agreement or the Registration Rights Agreement or (c) any cause of action, suit
or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on
behalf of the Company or any Subsidiary) and arising out of or resulting from (i) the execution, delivery, performance or enforcement
of any of this Agreement, the Registration Rights Agreement or the Note, (ii) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of the issuance of the Securities, or (iii) the status of the Investor or
holder of the Securities as an investor in the Company pursuant to the transactions contemplated by this Agreement. To the extent
that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution
to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. Except as otherwise
set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 9 shall be the same
as those set forth in Section 6 of the Registration Rights Agreement. Notwithstanding anything to the contrary in this Section
9, the Company shall not be obligated to pay an Indemnitee any sums otherwise due under this Section 9 if the Company has already
paid the Indemnitee such sums for the same Indemnified Liabilities under Section 6 of the Registration Rights Agreement.


10.             
Miscellaneous


10.1         
Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective successors and assigns of the parties (including transferees of the Securities).
Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto or their respective
successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.


10.2         
Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed




    	15



    	 



    

herein, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action
or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


10.3         
Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to
be considered in construing or interpreting this Agreement.


10.4         
Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a)
upon personal delivery to the party to be notified, (b) when sent by confirmed telex or facsimile if sent during normal business
hours of the recipient; if not, then on the next business day, (c) five (5) business days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to (a) in the case
of the Company, to Bioheart, Inc., 13794 NW 4th Street, Suite 212, Sunrise, Florida 33325, Telephone Number: (954) 835-1500,
Fax: (954) 845-9976, Attention: Mike Tomas, with a copy (which shall not constitute notice) to Joseph I. Emas, 1224 Washington
Avenue, Miami Beach, Florida 33139, Telephone: (305) 531-1174, or (b) in the case of the Investor, to Magna Equities II, LLC, a
New York limited liability company, c/o Magna, 5 Hanover Square, New York, NY 10004, Telephone Number: (347) 491-4240, Fax: (646)
737-9948, Attention: Marc Manuel, with a copy (which shall not constitute notice) to Greenberg Traurig, LLP, The MetLife Building,
200 Park Avenue, New York, New York 10166, Telephone Number (212) 801-9200, Fax: (212) 801-6400, Attention: Anthony J. Marsico,
Esq.


10.5         
Finder’s Fees. Each party represents that it neither is nor will be obligated for any finders’ fee or
commission in connection with this transaction. The Company shall indemnify and hold harmless each Investor from any liability
for any commission or compensation in the nature of a finders’ fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.


10.6         
Amendments and Waivers. No provision of this Agreement may be amended other than by a written instrument signed by
both parties hereto. No provision of this Agreement may be waived other than in a written instrument signed by the party against
whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of




    	16



    	 



    

any such power, right or privilege preclude
other or further exercises thereof or of any other right, power or privilege.


10.7         
Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such
provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.


10.8         
Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement among the parties
and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein.


10.9         
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.


10.10     
Interpretation. Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include
the singular, the singular the plural, the part the whole, (b) references to any gender include all genders, (c) “including”
has the inclusive meaning frequently identified with the phrase “but not limited to” and (d) references to “hereunder”
or “herein” relate to this Agreement.


10.11     
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery
of damages, the Investor and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained
in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation
the defense that a remedy at law would be adequate.


10.12     
Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated by this
Agreement; provided, however, that $30,000 (less $10,000 heretofore paid by the Company to the Investor) shall be withheld by the
Investor from the Purchase Price at the Closing as a non-accountable and non-refundable document preparation fee (the “Document
Preparation Fee”) in connection with the preparation, negotiation, execution and delivery of this Agreement, the
Registration Rights Agreement and the Note and legal due diligence of the Company, and shall be paid directly to the Investor’s
counsel on the Closing Date by wire transfer of immediately available funds. For the avoidance of doubt, the Document Preparation
Fee shall be non-refundable when paid. The Company shall pay all transfer agent fees (including, without limitation, any fees required
for same-day processing of any instruction letter delivered by the Company and any conversion or exercise notice delivered by the
Investor), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Investor.


10.13     
No Short Sales. So long as the Investor or its affiliates holds any Securities, neither the Investor nor any of its
affiliates nor any entity managed or controlled by




    	17



    	 



    

the Investor (collectively, the “Restricted
Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall,
directly or indirectly, engage in any Short Sales involving the Company’s securities; provided, that it is expressly understood
and agreed that, for purposes of determining whether a Short Sale shall be deemed to exist hereunder, a sale by a Restricted Person
of Common Stock shall not be deemed to be a “Short Sale” if executed at a time when such Restricted Person has an equivalent
offsetting long position in the Common Stock (or is deemed to have a long position hereunder or otherwise in accordance with Regulation
SHO under the 1934 Act); provided, further that no “Short Sale” shall be deemed to exist as a result of any failure
by the Company (or its agents) to deliver Conversion Shares upon conversion of the Note to any Restricted Person exercising the
Note. For purposes of determining whether a Restricted Person has an equivalent offsetting long position in the Common Stock, such
Restricted Person shall be deemed to hold “long” all Common Stock that is either (i) then owned by such Restricted
Person, if any, or (ii) then issuable to such Restricted Person as Conversion Shares pursuant to the terms of the Note held by
such Restricted Person, if any, (without regard to any limitations on conversion set forth in the Note and giving effect to any
conversion price adjustments that would take effect given only the passage of time). Notwithstanding the foregoing, nothing contained
herein shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person from selling “long”
(as defined under Rule 200 promulgated under Regulation SHO under the 1934 Act) the Securities or any other Common Stock then owned
by such Restricted Person.


10.14     
No Frustration. So long as the Investor or its affiliates hold any Securities, neither the Company nor any of its
affiliates or Subsidiaries, nor any of its or their respective officers, employees, directors, agents or other representatives,
will, without the prior written consent of the Investor (which consent may be withheld, delayed or conditioned in the Investor’s
sole discretion), effect, enter into, announce or recommend to its stockholders any agreement, plan, arrangement or transaction
(or issue, amend or waive any security) that would or would reasonably be expected to restrict, delay, conflict with or impair
the ability or right of the Company to timely perform its obligations under this Agreement, the Registration Rights Agreement or
the Note, including, without limitation, the obligation of the Company to timely deliver Conversion Shares upon conversion of the
Note.


11.             
Additional Defined Terms. In addition to the terms defined elsewhere in this Agreement, the Registration Rights Agreement
or the Note, the following terms have the meanings set forth in this Section 11:


11.1         
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.


11.2         
“Commission” means the United States Securities and Exchange Commission.


11.3         
“Effective Date” means the earliest of the date that (a) the initial Registration Statement has
been declared effective by the Commission, (b) all of the Registrable Securities have been sold pursuant to Rule 144 or may be
sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required
under Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year




    	18



    	 



    

anniversary of the Closing Date provided
that a holder of Registrable Securities is not an affiliate of the Company, all of the Registrable Securities may be sold pursuant
to an exemption from registration under Section 4(1) of the 1933 Act without volume or manner-of-sale restrictions.


11.4         
 “Liens” means a lien, charge pledge, security interest, encumbrance, right of first refusal,
preemptive right or other restriction.


11.5         
“Material Adverse Effect” means (i) a material adverse effect on the legality, validity or enforceability
of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s
ability to perform in any material respect on a timely basis its obligations under any Transaction Document.


11.6         
“Registrable Securities” shall have the meaning set forth in the Registration Rights Agreement.


11.7         
“Short Sales” means “short sales” as defined in Rule 200 promulgated under Regulation
SHO under the 1934 Act.


11.8         
“Subsidiary” or “Subsidiaries” means any corporation or other entity
of which at least a majority of the securities or other ownership interest having ordinary voting power for the election of directors
or other persons performing similar functions are at the time owned directly or indirectly by the Company and/or any of its other
Subsidiaries.


11.9         
“Trading Day” means any day on which the Common Stock is traded on the Trading Market, provided
that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on the Trading
Market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on the
Trading Market (or if the Trading Market does not designate in advance the closing time of trading on the Trading Market, then
during the hour ending at 4:00:00 p.m., New York City time) unless such day is otherwise designated as a Trading Day in writing
by the Investor.


11.10     
“Trading Market” means any of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the OTC Bulletin Board, the NASDAQ Global Market, the NASDAQ Global Select
Market, the NASDAQ Capital Market, the New York Stock Exchange, NYSE Arca, the NYSE MKT, or the OTCQX Marketplace or the OTCQB
Marketplace operated by OTC Markets Group Inc. (or any successor to any of the foregoing).


11.11     
“VWAP” means the volume weighted average price (the aggregate sales price of all trades of Common
Stock during a Trading Day divided by the total number of shares of Common Stock traded during such Trading Day) of the Common
Stock during a Trading Day as reported by Bloomberg L.P. using the AQR function.


[SIGNATURES ON THE
FOLLOWING PAGE]




    	19



    	 



    

IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered as of the date provided above.


 


THE COMPANY


 


BIOHEART, INC.


 


 


	By: 	/s/ Mike Tomas
	 	Name: Mike Tomas
	 	Title: President & CEO




 


 




    	 



    	 



    

IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered as of the date provided above.


 


THE INVESTOR:


 


 


MAGNA EQUITIES II, LLC, a New York limited liability
company


 









	By:	/s/ Joshua Sason

Name: Joshua Sason

Title: Managing Member