##### Table of Contents



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 Washington, D.C. 20549
 
 Amendment No. 1 to
FORM 10-K/A
  þ
    
    ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
 o
    
    TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
 Commission File Number 001-33718
 BIOHEART, INC.
  Florida
    
    65-0945967(State or other jurisdiction of 
incorporation or organization)
    
    (I.R.S. Employer Identification No.)
 13794 NW 4th Street, Suite 212, Sunrise, Florida 33325
 (954) 835-1500
 None
 Common Stock, $0.001 Par Value
 o x
 o x
 x o
 o
 o o
  Large accelerated filer o
    
    Accelerated filer o
    
    Non-accelerated filer o
    
    Smaller reporting company x




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##### 



INDEX
 PageExplanatory Note
    
    
    2PART IIIItem 10.
    
    Directors, Executive Officers and Corporate Governance
    
    
    3Item 11.
    
    Executive Compensation
    
    
    8Item 12.
    
    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
    
    
    15Item 13.
    
    Certain Relationships and Related Transactions, and Director Independence
    
    
    16Item 14.
    
    Principal Accounting Fees and Services
    
    
    19PART IVItem 15.
    
    Exhibits, Financial Statement Schedules
    
    
    21EX-31.1EX-32.1




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EXPLANATORY NOTE
     2




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PART III
 
 Item 10. Directors, Executive Officers and Corporate Governance
 Executive Officers and Directors
  Name
    
    Age
    
    PositionHoward J. Leonhardt
    
    
    47
    
    
    Chairman of the Board, Chief Executive Officer and
Chief Technology OfficerScott Bromley
    
    
    47
    
    
    Vice President of Public RelationsKristin Comella
    
    
    32
    
    
    Vice President of Research and Corporate DevelopmentMatt Fendrich
    
    
    42
    
    
    Vice President of Sales and MarketingCatherine Sulawske-Guck
    
    
    40
    
    
    Vice President of Administration and Human ResourcesBruce Carson
    
    
    45
    
    
    DirectorPeggy A. Farley
    
    
    62
    
    
    DirectorKarl E. Groth
    
    
    61
    
    
    DirectorWilliam P. Murphy, Jr., M.D.
    
    
    84
    
    
    DirectorRichard T. Spencer III
    
    
    72
    
    
    Director
 Executive Officers
 Howard J. Leonhardt
 Scott Bromley.
 Kristin Comella
 3




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Matt Fendrich.
 Catherine Sulawske-Guck.
 Board of Directors
 Bruce C. Carson.
 Peggy A. Farley.
 Karl E. Groth., Ph.D.
 William P. Murphy, Jr., M.D.
 4




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Richard T. Spencer, III.
 Family Relationships
   Shareholder Recommendations for Board Nominees
   
    
    the appropriate size and the diversity of our Board;
    
    our needs with respect to the particular talents and experience of our directors;
    
    the knowledge, skills and experience of nominees, including experience in
technology, business, finance, administration or public service, in light of prevailing
business conditions and the knowledge, skills and experience already possessed by other
members of the Board;
    
    familiarity with national and international business matters;
    
    experience in political affairs;
    
    experience with accounting rules and practices;
    
    whether such person qualifies as an audit committee financial expert pursuant to
the SEC Rules;
    
    appreciation of the relationship of our business to the changing needs of society;
and
    
    the desire to balance the considerable benefit of continuity with the periodic
injection of the fresh perspective provided by new members.
 5




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Audit Committee
   Communications with the Board of Directors
  6




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Code of Ethics
   Whistleblower Policy
  Section 16(a) Beneficial Ownership Reporting Compliance
   7




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Item 11. Executive Compensation
 Compensation Discussion and Analysis
    Elements of Compensation
  Base Salary.
 Discretionary Annual Bonus.
 8




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Long-Term Incentive Program.
     Other Compensation.
 Compensation Committee Report
   
 9




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##### Table of Contents



Summary Compensation Table
  Annual Compensation
    
    
    Long-Term Compensation AwardsSalary
    
    
    Bonus
    
    
    Stock Awards
    
    
    Option Awards
    
    
    All OtherName and Principal Position
    
    Year
    
    
    ($)
    
    
    ($)
    
    
    ($)
    
    
    ($)(1)
    
    
    Compensation ($)
    
    
    Total ($)Howard J. Leonhardt (2)
    
    
    2008
    
    
    
    150,000
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    150,000Chairman of the Board,
    
    
    2007
    
    
    
    150,000
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    150,000Chief Executive Officer and
    
    
    2006
    
    
    
    150,000
    
    
    
    1,000
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    151,000Chief Technology OfficerWilliam M. Pinon (3)
    
    
    2008
    
    
    
    164,223
    
    
    
    
    
    
    
    
    
    
    
    162,022
    (4)
    
    
    
    
    
    
    326,245Former President & Chief
    
    
    2007
    
    
    
    220,209
    
    
    
    
    
    
    
    
    
    
    
    226,831
    (5)
    
    
    
    
    
    
    447,040Executive OfficerWilliam H. Kline (6)
    
    
    2008
    
    
    
    130,000
    
    
    
    
    
    
    
    
    
    
    
    240,000
    (7)
    
    
    
    
    
    
    370,000Former Chief Financial
    
    
    2007
    
    
    
    50,000
    
    
    
    
    
    
    
    
    
    
    
    240,000
    (8)
    
    
    
    
    
    
    370,000Officer
    
    
    2006
    
    
    
    
    
    
    
    1,000
    
    
    
    
    
    
    
    96,000
    (9)
    
    
    
    
    
    
    147,000Scott Bromley
    
    
    2008
    
    
    
    130,000
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    130,000Vice President of Public
    
    
    2007
    
    
    
    130,000
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    130,000Relations
    
    
    2006
    
    
    
    130,000
    
    
    
    1,000
    
    
    
    366,429
    (10)
    
    
    2,928,000
    (11)
    
    
    153,000
    (12)
    
    
    3,578,429Nicholas M. Burke (13)
    
    
    2008
    
    
    
    120,000
    
    
    
    
    
    
    
    
    
    
    
    101,004
    (14)
    
    
    
    
    
    
    221,004Former Vice President of
    
    
    2007
    
    
    
    49,846
    
    
    
    
    
    
    
    
    
    
    
    43,768
    (15)
    
    
    
    
    
    
    93,614Financial Operations
 
 (1)
    
    Amount reflects the expensed fair value of stock options in 2008, 2007 and 2006, calculated in
accordance with SFAS No. 123(R).(2)
    
    Mr. Leonhardt served as our Chief Executive Officer during all of 2006 and from January through
March 2007. In July 2008, he resumed the position as our Chief Executive Officer upon the
resignation of Mr. Pinon.(3)
    
    Mr. Pinon commenced his employment with us in March 2007 and resigned effective July 2008.(4)
    
    Represents the 2008 expensed fair value of options to purchase 169,890 shares of our common
stock granted March 7, 2007, with an exercise price of $8.47 per share. The options were scheduled
to vest in four equal installments on each of March 7, 2008, March 7, 2009, March 7, 2010 and March
7, 2011. Vested options will expire one year subsequent to the date of termination of employment.
All unvested options expired upon the date of termination of employment.(5)
    
    Represents the 2007 expensed fair value of options to purchase 169,890 shares of our common
stock granted March 7, 2007, with an exercise price of $8.47 per share. The options vest in four
equal installments on each of March 7, 2008, March 7, 2009, March 7,
2010 and March 7, 2011. Vested options will expire one year subsequent to the date of termination
of employment. All unvested options expired upon the date of termination of employment.(6)
    
    Mr. Kline commenced his employment with us in August 2006 and resigned effective January 2009.(7)
    
    Represents the 2008 expensed fair value of options to purchase 154,445 shares of our common
stock granted August 7, 2006, with an exercise price of $5.67 per share, vesting in four equal
installments on each of August 7, 2007, August 7, 2008, August 7, 2009 and August 7, 2010. Vested
options will expire 90 days subsequent to the date of termination of employment. All unvested
options expired upon the date of termination of employment. 10




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(8)
    
    Represents the 2007 expensed fair value of options to purchase 154,445 shares of our common
stock granted August 7, 2006, with an exercise price of $5.67 per share, vesting in four equal
installments on each of August 7, 2007, August 7, 2008, August 7, 2009 and August 7, 2010. Vested
options will expire 90 days subsequent to the date of termination of employment. All unvested
options expired upon the date of termination of employment.(9)
    
    Represents the 2006 expensed fair value of options to purchase 154,445 shares of our common
stock granted August 7, 2006, with an exercise price of $5.67 per share, vesting in four equal
installments on each of August 7, 2007, August 7, 2008, August 7, 2009 and August 7, 2010. Vested
options will expire 90 days subsequent to the date of termination of employment. All unvested
options expired upon the date of termination of employment.(10)
    
    Relates to the issuance of 47,658 shares to Mr. Bromley in accordance with the terms of the
Bromley Letter Agreement.(11)
    
    Represents the expensed fair market value of (i) options to purchase 282,635 shares of our
common stock granted August 24, 2006, with an exercise price of $5.67 per share and (ii) a warrant
to purchase 188,423 shares of our common stock granted August 24, 2006, with an exercise price of
$5.67 per share.(12)
    
    Relates to amounts paid to Mr. Bromley to reimburse him for federal and state income taxes due
in connection with his receipt of 47,658 shares of our common stock in accordance with the Bromley
Letter Agreement.(13)
    
    Mr. Burke commenced his employment with us in July 2007 and resigned effective January 2009.(14)
    
    Represents the 2008 expensed fair value of options to purchase 61,778 shares of our common
stock granted July 25, 2007, with an exercise price of $8.47 per share, vesting in four equal
installments on each of July 25, 2008, July 25, 2009, July 25, 2010 and July 25, 2011. In January
2009, Mr. Burke resigned. Vested options will expire 90 days subsequent to the date of termination
of employment. All unvested options expired upon the date of termination of employment.(15)
    
    Represents the 2007 expensed fair value of options to purchase 61,778 shares of our common
stock granted July 25, 2007, with an exercise price of $8.47 per share, vesting in four equal
installments on each of July 25, 2008, July 25, 2009, July 25, 2010 and July 25, 2011. In January
2009, Mr. Burke resigned. Vested options will expire 90 days subsequent to the date of termination
of employment. All unvested options expired upon the date of termination of employment. Our Stock Option Plans
 1999 Officers and Employees Stock Option Plan and the 1999 Directors and Consultants Stock
Option Plan
  Options Available for Issuance
  11




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Material Terms of the Plans
     Bioheart Omnibus Equity Compensation Plan
 12




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Outstanding Equity Awards at Fiscal Year End
  OptionNumber of Securities Underlying
    
    
    Exercise
    
    
    OptionUnexercised Options and Warrants
    
    
    Price
    
    
    ExpirationName
    
    Exercisable (#)
    
    
    Unexercisable (#)
    
    
    ($/per share)
    
    
    DateHoward J. Leonhardt
    
    
    23,167
    
    
    
    
    
    
    
    5.67
    
    
    
    12/31/113,212
    
    
    
    
    
    
    
    5.67
    
    
    
    12/31/15William M. Pinon
    
    
    42,472
    (1)
    
    
    
    
    
    
    8.47
    
    
    
    07/25/09William H. Kline
    
    
    38,612
    (2)
    
    
    
    
    
    
    5.67
    
    
    
    04/02/09Scott Bromley
    
    
    61,778
    
    
    
    
    
    
    
    1.28
    
    
    
    12/25/0925,947
    
    
    
    
    
    
    
    5.67
    
    
    
    12/18/10309
    
    
    
    
    
    
    
    5.67
    
    
    
    12/31/15282,635
    
    
    
    
    
    
    
    5.67
    
    
    
    08/24/16188,423
    
    
    
    
    
    
    
    5.67
    
    
    
    08/24/16Nicholas M. Burke
    
    
    15,445
    
    
    
    46,333
    (3)
    
    
    5.67
    
    
    
    04/16/09
 
 (1)
    
    The options expire one year subsequent to the date of termination of employment.(2)
    
    The options expire 90 days subsequent to the date of termination of employment.(3)
    
    The unexercisable options were to vest in three equal installments on each of July 25,
2009, July 25, 2010 and July 25, 2011. In January 2009, Mr. Burke resigned. All unvested
options expired upon the date of termination of employment. Vested options will expire 90
days subsequent to the date of termination of employment. Option Exercises
  Pension Benefits
  Nonqualified Defined Contribution and Other Nonqualified Deferred Compensation Plans
  13




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Potential Payments upon Termination or Change in Control
  Director Compensation
  Compensation Committee Interlocks and Insider Participation
    14




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Item 12.
    
    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters
 (1)
 Options orWarrantsCurrently
    
    
    TotalExercisable or
    
    
    CommonExercisable
    
    
    Stock andCommon
    
    
    within 60 days
    
    
    Common Stock
    
    
    PercentageStock
    
    
    for Shares of
    
    
    Based
    
    
    of ClassName
    
    (#)
    
    
    Common Stock
    
    
    Holdings
    
    
    (%)(2)Howard J. Leonhardt
    
    
    4,727,571
    (3)
    
    
    230,249
    (4)
    
    
    4,957,820
    
    
    
    28.6Scott Bromley
    
    
    47,658
    
    
    
    564,509
    (5)
    
    
    612,167
    
    
    
    3.5Bruce Carson
    
    
    208,501
    
    
    
    170,912
    (6)
    
    
    379,413
    
    
    
    2.2Peggy A. Farley
    
    
    549,410
    (7)
    
    
    35,000
    (8)
    
    
    584,410
    
    
    
    3.4Karl E. Groth, Ph.D.
    
    
    509,410
    (9)
    
    
    
    
    
    
    509,410
    
    
    
    3.0William P. Murphy, Jr., M.D.
    
    
    74,134
    (10)
    
    
    88,286
    (11)
    
    
    162,420
    
    
    
    *Richard T. Spencer, III
    
    
    18,535
    
    
    
    178,637
    (12)
    
    
    197,172
    
    
    
    1.1Roger Telecommunications
    
    
    877,190
    
    
    
    714,200
    (13)
    
    
    1,591,390
    
    
    
    8.9Limited
Directors and ExecutiveOfficers as a group (10
persons)
    
    
    5,650,079
    
    
    
    1,351,275
    
    
    
    7,001,354
    
    
    
    38.0
 
 *
    
    Represents less than 1% of the total number of shares of common stock outstanding.(1)
    
    A person is deemed to be the beneficial owner of securities that can be acquired by such person
within 60 days from April 17, 2009 upon exercise of options, warrants and convertible securities.
Each beneficial owners percentage ownership is determined by assuming that options, warrants and
convertible securities that are held by such person (but not those held by any other person) and
that are exercisable within 60 days from April 17, 2009 have been exercised.(2)
    
    Applicable percentage ownership is based on 17,095,570 shares of common stock outstanding as of
April 17, 2009.(3)
    
    Shares are directly and jointly held by Mr. Leonhardt and his spouse.(4)
    
    Includes (i) 26,379 shares issuable upon the exercise of presently exercisable stock options at
an exercise price of $5.67 per share and (ii) 203,870 shares issuable upon the exercise of
presently exercisable warrants at an exercise price of $7.69 per share.(5)
    
    Consists of (i) 61,778 shares issuable upon the exercise of presently exercisable stock options
at an exercise price of $1.28 per share, (ii) 308,891 shares issuable upon the exercise of
presently exercisable stock options at an exercise price of $5.67 per share, (iii) 188,423 shares
issuable upon the exercise of a presently exercisable warrant at an exercise price of $5.67 per
share (iv) 3,250 shares issuable upon the exercise of presently exercisable stock options at an
exercise price of $0.71 per share and (v) 2,167 shares issuable upon the exercise of stock options
at an exercise price of $0.71 per share that are subject to exercise within 60 days.(6)
    
    Consists of (i) 129,734 shares issuable upon the exercise of presently exercisable stock
options at an exercise price of $5.67 per share, (ii) 6,178 shares issuable upon the exercise of
presently exercisable stock options at an exercise price of $7.69 per share and (iii) 35,000 shares
issuable upon the exercise of presently exercisable stock options at an exercise price of $5.25 per
share.(7)
    
    Includes (i) 40,000 shares owned directly by Ms. Farley, (ii) 42,010 shares over which Ms.
Farley has voting power, (iii) 77,223 shares owned by Ascent Medical Technology Fund, LP, over
which Ms. Farley has shared voting and investment power and (iv) 390,177 shares owned by Ascent
Medical Technology Fund II, LP, over which Ms. Farley has shared voting and investment power.(8)
    
    Consists of 35,000 shares issuable upon the exercise of presently exercisable stock options at
an exercise price of $5.25 per share.(9)
    
    Includes (i) 42,010 shares over which Dr. Groth has voting power, (ii) 77,223 shares owned by
Ascent Medical Technology Fund, LP, over which Dr. Groth has shared voting and investment power and
(iii) 390,177 shares owned by Ascent Medical Technology Fund II, LP, over which Dr. Groth has
shared voting and investment power.(10)
    
    Shares are directly owned by trusts controlled by Dr. Murphy and his spouse.(11)
    
    Includes (i) 12,356 shares issuable upon the exercise of presently exercisable stock options
at an exercise price of $5.67 per share, (ii) 6,178 shares issuable upon the exercise of presently
exercisable stock options at an exercise price of $7.69 per share, (iii) 35,000 shares issuable
upon the exercise of presently exercisable stock options at an exercise price of $5.25 per share
and (iv) 34,752 shares issuable upon the exercise of presently exercisable warrants at an exercise
price of $7.69 per share.(12)
    
    Includes (i) 67,957 shares issuable upon the exercise of presently exercisable stock options
at an exercise price of $5.67 per share, (ii) 6,178 shares issuable upon the exercise of presently
exercisable stock options at an exercise price of $7.69 per share, (iii) 35,000 shares issuable
upon the exercise of presently exercisable stock options at an exercise price of $5.25 per share
and (iv) 69,502 shares issuable upon the exercise of presently exercisable warrants at an exercise
price of $7.69 per share.(13)
    
    Includes (i) 263,157 shares issuable upon the exercise of a presently exercisable warrant at
an exercise price of $2.05 per share and (ii) 451,043 shares issuable upon the exercise of
presently exercisable warrant at an exercise price of $0.5321 per share. Does not include shares
potentially issuable as payment of a $1 million promissory note and accrued interest. The shares
are issuable at the option of the Company and only upon the achievement of certain conditions by
the Company. 15




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Item 13. Certain Relationships and Related Transactions and Director Independence
 Certain Relationships and Related Party Transactions
 Bank of America Note Payable
      16




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Guarantees Provided By Mr. Leonhardt
   Purchase of Shares in Our Initial Public Offering
  17




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Placement Fee
  Research Fee
  Review of Related Party Transactions
  Board Committee Independence
  Audit Committee
  18




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Compensation Committee
  Governance & Nominating Committee CSG to update changes
  
 Item 14. Principal Accounting Fees and Services
 Independent Registered Public Accounting Firm Fees
  Types of Fees
    
    2008
    
    
    2007Audit Fees (1)
    
    $
    155,895
    (2)
    
    $
    388,336
    (3)Audit Related Fees
    
    
    
    
    
    
    Tax Fees
    
    
    
    
    
    
    All Other Fees
    
    
    
    
    
    
    
 
 (1)
    
    This category also includes advice on audit and accounting matters that arose during,
or as a result of, the audit of the annual consolidated financial statements or the reviews
of the interim financial statements.(2)
    
    Includes the aggregate fees billed to us by Jewett Schwartz Wolfe & Associates for
professional services rendered for the audit of our 2008 and 2007 annual consolidated
financial statements. Also includes the aggregate fees billed to us by Grant Thornton
during 2008 for professional services rendered for the reviews of the financial statements
included in our Quarterly Reports on Form 10-Q and services that are normally provided by
our independent registered public accounting firm in connection with consents and other
services related to SEC matters, including our Registration Statement on Form S-1.(3)
    
    Represents the aggregate fees billed to us by Grant Thornton for professional services
rendered for the audit of our 2007 annual consolidated financial statements, the reviews of
the financial statements included in our Quarterly Reports on Form 10-Q and services that
are normally provided by our independent registered public accounting firm in connection
with consents and other services related to SEC matters, including our Registration
Statement on Form S-1.  19




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Audit Committee Pre-Approval Policy
         20




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PART IV
 
 Item 15. Exhibits, Financial Statement Schedules
  ExhibitNo.
    
    Exhibit Description31.1*
    
    Certification Pursuant to 18 U.S.C. Section 1350, As Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of 200232.1*
    
    Certification Pursuant to 18 U.S.C. Section 1350, As Adopted
Pursuant to Section 906 of the Sarbanes-Oxley Act of
 
 *
    
    Filed herewith 21




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SIGNATURES
  BIOHEART, INC.By:
    /s/ Howard J. LeonhardtHoward J. LeonhardtChairman of the Board, Chief Executive
Officer and Chief Technology Officer
(Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer)   SIGNATURE
    
    TITLE
    
    DATE/s/ Howard J. Leonhardt

Howard J. Leonhardt
    
    Chairman of the
Board, Chief
Executive Officer and
Chief Technology
Officer
(Principal Executive
Officer, Principal
Financial Officer and
Principal Accounting
Officer)
    
    April 30, 2009Bruce Carson
    
    Director/s/ Peggy A. Farley

Peggy A. Farley
    
    Director
    
    April 30, 2009/s/ Karl E. Groth, Ph.D.

Karl E. Groth, Ph.D.
    
    Director
    
    April 30, 2009/s/ William P. Murphy, Jr., M.D.

William P. Murphy, Jr., M.D.
    
    Director
    
    April 30, 2009/s/ Richard T. Spencer III

Richard T. Spencer III
    
    Director
    
    April 30, 2009
 22




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INDEX OF EXHIBITS




Exhibit No.
    
    Description31.1
    
    
    Certification Pursuant to 18 U.S.C. Section 1350, As Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of 200232.1
    
    
    Certification Pursuant to 18 U.S.C. Section 1350, As Adopted
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002