EX-10.19 Warrant to Purchase/R&A Spencer Family



 





EXHIBIT 10.19




Warrant Agreement No. ________




NEITHER THIS WARRANT NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON EXERCISE HEREOF HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS,
AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.



June 1, 2007




BIOHEART, INC.




(Incorporated under the laws of the State of Florida)




Warrant for the Purchase of Shares of Common Stock




     FOR VALUE RECEIVED, BIOHEART, INC., a Florida corporation (the “Company”), hereby
certifies that the R&A Spencer Family Limited Partnership (the “Initial Holder”), or
his/her/its assigns (the “Holder”) is entitled, subject to the provisions of this Warrant,
to purchase from the Company, up to 78,900 (subject to adjustment in accordance with the four
immediately succeeding paragraphs and Section 5 below) (the “Subject Shares”) fully paid
and non-assessable shares of Common Stock at a price of $4.75 per share, subject to adjustment in
accordance with Section 5 below (the “Exercise Price”). This Warrant is being
issued in connection with that certain Loan Guarantee, Payment and Security Agreement by and
between the Company and the Initial Holder, dated as of June [          ], 2007 (the “Guarantee
Agreement”).



     In the event that, as of September 30, 2007, the Company has not satisfied and/or discharged
all of its payment obligations, including, without limitation, all payment obligations under the
agreements, documents and instruments entered into in connection therewith (a “Loan
Satisfaction”) under that certain $5,000,000 Loan borrowed by the Company from Bank of America,
N.A. (the “Bank of America Loan”), the number of Subject Shares shall be automatically
increased to 90,000 shares without any action required on the part of the Company or the Holder.



     In the event that, as of the first year anniversary of the closing of the Bank of America Loan
(the “Closing Date”), the Company has not satisfied and/or discharged all of its material
payment obligations to the Initial Holder under the Guarantee Agreement (a “Guarantee
Satisfaction”), the number of Subject Shares shall be
automatically increased to 112,500 shares
without any action required on the part of the Company or the Holder.



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     In the event that, as of the second year anniversary of the Closing Date, the Company has not
effectuated a Guarantee Satisfaction, the number of Subject Shares shall be automatically increased
to 150,000 shares without any action required on the part of the Company or the Holder.



     In the event that, as of the third year anniversary of Closing Date, the Company has not
effectuated a Guarantee Satisfaction, the number of Subject Shares shall be automatically increased
to 225,000 shares without any action required on the part of the Company or the Holder.



     Notwithstanding the immediately preceding four paragraphs to the contrary, a failure to timely
effectuate a Guarantee Satisfaction shall be without prejudice to the Initial Holder’s (and/or its
assign’s or successor’s in interest in respect of the Guarantee Agreement) rights with respect to
the Guarantee Agreement, it being understood that adjustments to the Subject Shares relating to the
Company’s failure to effectuate a Guarantee Satisfaction shall be an additional right of the Holder
(and/or such successor or assign).



     The number of Subject Shares are also subject to adjustment in accordance with Section 5
below.



     The term “Common Stock” means the Common Stock, par value $.001 per share, of the
Company as constituted on June 1, 2007 (the “Base Date”). The number of Subject Shares
shall be adjusted from time to time as set forth herein. The shares of Common Stock deliverable
upon such exercise, and as adjusted from time to time, are hereinafter referred to as “Warrant
Stock.” The term “Other Securities” means any other equity or debt securities that may
be issued by the Company in addition thereto or in substitution for the Warrant Stock. The term
“Company” means and includes the corporation named above as well as (i) any immediate or
more remote successor entity resulting from the merger or consolidation of such entity (or any
immediate or more remote successor corporation of such entity) with another entity, or (ii) any
entity to which such entity (or any immediate or more remote successor corporation of such
corporation) has transferred its all or substantially all of its property or assets.



     Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of
indemnification reasonably satisfactory to the Company, and upon surrender and cancellation of this
Warrant, if mutilated, the Company shall execute and deliver a new Warrant of like tenor and date.
Any such new Warrant executed and delivered shall constitute an additional contractual obligation
on the part of the Company, whether or not this Warrant so lost, stolen, destroyed or mutilated
shall be at any time enforceable by anyone.



     The Holder agrees with the Company that this Warrant is issued, and all the rights hereunder
shall be held subject to, all of the conditions, limitations and provisions set forth herein.



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     1. Exercise of Warrant.



          (a) Subject to Section 1(b) below and in accordance with the procedures set forth in Section
1(c) below, this Warrant may be exercised, in whole or in part, at any time, or from time to time
during the period commencing on the date that is three hundred and sixty-six (366) days following
the date of the closing (the “Closing Date”) of the Bank of America Loan (the “One Year
Exercise Date”) and expiring at 5:00 p.m. Eastern Time on the date that is ten years following
the Closing Date (the “Expiration Date”).



          (b) Notwithstanding Section 1(a) above, in no event shall the Holder be entitled to exercise
this Warrant until such time that the Company effectuates a Loan Satisfaction; provided, however,
that if, as of the eight month anniversary of the Closing Date, the Company has not effectuated a
Loan Satisfaction but the Initial Holder has complied in full with all of its material obligations
under the Guarantee Agreement, this Section 1(b) shall have no further force and effect.



          (c) During the period that this Warrant is exercisable in accordance with Sections 1(a) and
1(b) above, the Holder may exercise this Warrant by presentation and surrender of this Warrant to
the Company at its principal office, or at the office of its stock transfer agent, if any, together
with the Warrant Exercise Form, attached hereto as Exhibit A, duly executed and the
Shareholders Agreement, attached hereto as Exhibit B (the “Shareholders
Agreement”), duly executed, accompanied by payment (either in cash or by certified or official
bank check, payable to the order of the Company) of the Exercise Price for the number of shares
specified in such form and instruments of transfer, if appropriate, duly executed by the Holder or
his, her or its duly authorized attorney. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder thereof to purchase the balance of the shares purchasable
hereunder. Upon receipt by the Company of this Warrant, together with a duly executed Warrant
Exercise Form , a duly executed Shareholders Agreement and the Exercise Price, at its office, or by
the stock transfer agent of the Company at its office, in proper form for exercise, the Holder
shall, subject to compliance with any applicable securities laws, be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates representing such shares of
Common Stock shall not then be actually delivered to the Holder.



          (d) In the event the Initial Holder commits a Key Default (as defined in the Guarantee
Agreement), this Warrant shall be automatically cancelled, without any action required on the part
of the Company or the Holder, and shall have no further force and effect.



          (e) During the period that this Warrant is exercisable in accordance with Sections 1(a) and
1(b) above and provided that (i) the Company’s Common Stock is publicly traded and (ii) the average
reported weekly trading volume during the four weeks preceding the date of exercise is equal to or
greater than 2,500,000, in lieu of exercising this Warrant by



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tendering cash pursuant to Section 3(c) above, the Holder of this Warrant may elect to
receive, without the payment by the Holder of any additional consideration, shares equal to the
value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with notice of such election, in which event the Company
shall issue to the holder hereof a number of Shares computed using the following formula:



	 	 	 	 	 
	 

	 	 	 	Y (A - B)
	X

	 	=
	 	 

A






     Where:



     X = The number of shares to be issued to the Holder pursuant to this net exercise;



     Y = The number of shares in respect of which the net issue election is made;



     A = The fair market value of one share at the time the net issue election is made; and



     B = The Exercise Price (as adjusted to the date of the net issuance).



     For purposes of this paragraph 3(e), the “fair market value” of one share of Common Stock as
of a particular date shall mean the closing price (or average of the closing “bid” and “asked”
prices, as the case may be) on the applicable date (i.e. the date of exercise of Warrant) of the
Common Stock as reported by Bloomberg L.P. on the applicable market upon which the Common Stock is
traded.



     2. Reservation of Shares. The Company covenants that during the term this Warrant is
exercisable, the Company will reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of Common Stock upon the exercise of this Warrant and,
from time to time, if necessary, will use its reasonable best efforts to amend its Articles of
Incorporation to provide sufficient reserves of shares of Common Stock issuable upon exercise of
the Warrant.



     3. Fractional Shares. No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant, but the Company shall issue one additional share
of its Common Stock or Other Securities (as applicable) in lieu of each fraction of a share
otherwise called for upon exercise of this Warrant.



     4. Transfer of Warrant.



          (a) Subject to compliance with any applicable federal and state securities laws, the
conditions set forth in Sections 4(b) below and the provisions of Section 7 of this Warrant, this
Warrant may be transferred by the Holder with respect to any or all of the shares purchasable
hereunder. Upon surrender of this Warrant to the Company or at the office of its stock transfer
agent, if any, together with the Assignment Form, attached hereto as Exhibit C



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duly
executed, the Transferor Representation Letter (as defined below) duly executed, the Transferee
Representation Letter (as defined below) duly executed and funds sufficient to pay any transfer
tax, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination or denominations specified in the Assignment Form and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned. Thereafter,
this Warrant shall promptly be cancelled. This Warrant may be divided or combined with other
Warrants that carry the same rights upon presentation hereof at the office of the Company or at the
office of its stock transfer agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder hereof.
Notwithstanding the foregoing, the Company shall not be required to issue a Warrant covering less
than 1,000 shares of Common Stock.



          (b) Notwithstanding anything to the contrary set forth herein, no transfer of all or any
portion of this Warrant shall be made except for transfers to the Company, unless:



               (x) if such transfer is made at any time prior to the One Year Exercise Date, the Holder and
the proposed transferee each truthfully certify and provide to the Company a written representation
letter (the “Transferor Representation Letter” and the “Transferee Representation
Letter”, respectively) that such transfer is to either:



                    (A) a “Qualified Institutional Buyer” as such term is defined under Rule 144A of the
Securities Act, attached hereto as Exhibit D;



                    (B) a “large institutional accredited investor” as such term is used in the Securities and
Exchange Commission staff’s No-Action Letter dated February 28, 1992 to Squadron, Ellenoff,
Pleasant & Lehrer, attached hereto as Exhibit E; or



                    (C) a person that is (1) an “accredited investor” within the meaning of Regulation D under the
Securities Act (an “Accredited Investor”), (2) as of the Effective Date (as defined in the
Guarantee Agreement) and the date of such transfer, is an executive officer of the Company or a
member of the Company’s management; and (3) participated in assisting the Company structure
the issuance of this Warrant to the (x) Guarantor (as defined in the Guarantee Agreement) and (y)
any other persons receiving warrants in connection with their provision of a guaranty or letter of
credit to secure the Bank of America Loan.



               (y) if such transfer is made at any time following the One Year Exercise Date, the
Holder and the proposed transferee each truthfully certify and provide to the Company the
Transferor Representation Letter and the Transferee Representation Letter, respectively that such
transfer is to an Accredited Investor.



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     5. Anti-Dilution Provisions.



          5.1 Adjustment for Dividends in Other Securities, Property, Etc. In case at any time
or from time to time after the Base Date the shareholders of the
Company shall have received, or on
or after the record date fixed for the determination of eligible shareholders, shall have become
entitled to receive without payment therefor: (a) other or additional securities or property (other
than cash) by way of dividend, (b) any cash paid or payable or (c) other or additional (or less)
securities or property (including cash) by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar corporate rearrangement, then, and in each such
case, the Holder of this Warrant, upon the exercise thereof as provided in Section 1, shall
be entitled to receive the amount of securities and property (including cash in the cases referred
to in clauses (b) and (c) above) which such Holder would hold on the date of such exercise if on
the Base Date it had been the holder of record of the number of shares of Common Stock or Other
Securities (as applicable) as constituted on the Base Date subscribed for upon such exercise as
provided in Section 1 and had thereafter, during the period from the Base Date to and
including the date of such exercise, retained such shares and/or all other additional (or less)
securities and property (including cash in the cases referred to in clauses (b) and (c) above)
receivable by it as aforesaid during such period, giving effect to all adjustments called for
during such period by this Section 5.1 and Sections 5.2 and 5.3 below.



          5.2 Adjustment for Recapitalization. If the Company shall at any time subdivide its
outstanding shares of Common Stock (or Other Securities at the time receivable upon the exercise of
the Warrant), or if the Company shall declare a stock dividend or distribute shares of Common Stock
(or Other Securities) to its shareholders, the number of shares of Common Stock (or Other
Securities, as the case may be) subject to this Warrant immediately prior to such subdivision shall
be proportionately increased and the Exercise Price shall be proportionately decreased, and if the
Company shall at any time combine the outstanding shares of Common Stock, the number of shares of
Common Stock or Other Securities subject to this Warrant immediately prior to such combination
shall be proportionately decreased and the Exercise Price shall be proportionately increased. Any
such adjustments pursuant to this Section 5.2 shall be effective at the close of business
on the effective date of such subdivision or combination or if any adjustment is the result of a
stock dividend or distribution then the effective date for such adjustment based thereon shall be
the record date therefor.



          5.3 Adjustment for Reorganization, Consolidation, Merger, Etc. In case of any
reorganization of the Company (or any other entity, the securities of which are at the time
receivable on the exercise of this Warrant) after the Base Date or in case after such date the
Company (or any such other entity) shall consolidate with or merge into another corporation or
convey all or substantially all of its assets to another corporation, then, and in each such case,
the Holder of this Warrant upon the exercise thereof as provided in Section 1 at any time
after the consummation of such reorganization, consolidation, merger or conveyance, shall be
entitled to receive, in lieu of the securities and property receivable upon the exercise of this
Warrant prior to such consummation, the securities or property to which such Holder would have been
entitled upon such consummation if such Holder had exercised this Warrant immediately prior
thereto; in
each such case, the terms of this Warrant shall be applicable to the securities or property
receivable upon the exercise of this Warrant after such consummation.



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          5.4 No Impairment. The Company will not, by amendment of its Articles of Incorporation
(or the Shareholders Agreement) or through reorganization, consolidation, merger, dissolution,
issue or sale of securities, sale of assets or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder of this Warrant against
impairment. Without limiting the generality of the foregoing, while this Warrant is outstanding,
the Company will take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue or sell fully paid and non-assessable shares of capital stock upon
the exercise of this Warrant.



          5.5 Certificate as to Adjustments. In each case of an adjustment in the number of
shares of Warrant Stock or Other Securities receivable on the exercise of this Warrant, the Company
at its expense will promptly compute such adjustment in accordance with the terms of this Warrant
and prepare a certificate executed by an executive officer of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based. The Company will
forthwith mail a copy of each such certificate to the Holder.



          5.6 Notices of Record Date, Etc. In case:



          (a) the Company shall take a record of the holders of its Common Stock (or Other Securities at
the time receivable upon the exercise of the Warrant) for the purpose of entitling them to receive
any dividend (other than a cash dividend at the same rate as the rate of the last cash dividend
theretofore paid) or other distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities, or to receive any other right; or



          (b) of any capital reorganization of the Company, any reclassification of the capital stock of
the Company, any consolidation or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to another corporation; or



          (c) of any voluntary or involuntary dissolution, liquidation or winding up of the Company,



then, and in each such case, the Company shall mail or cause to be mailed to the Holder of the
Warrant at the time outstanding a notice specifying, as the case may be, (i) the date on which a
record is to be taken for the purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up is to take place, and the time, if any, which is to be fixed, as to which the holders of
record of Common Stock (or such other securities at the time receivable upon the exercise of the
Warrant) shall be entitled to exchange their shares of Common Stock (or such other securities) for
securities or other property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up. Such notice shall be mailed at least
twenty (20) days prior to the date therein specified and the Warrant may be exercised prior to said
date during the term of the Warrant.



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     6. Legend. Unless the shares of Warrant Stock or Other Securities have been registered
under the Securities Act, upon exercise of any of the Warrants and the issuance of any of the
shares of Warrant Stock or Other Securities, all certificates representing such securities shall
bear on the face thereof substantially the following legend:



“The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the “Act”) and may not be sold
or transferred in the absence of an effective registration statement under
the Act or an opinion of counsel satisfactory to the Company that such
registration is not required. The securities represented by this
certificate are subject to certain restrictions and agreements contained in,
that certain Warrant Agreement dated                     , 2007, by and between the original
Holder and the Company and, may not be sold, assigned, transferred,
encumbered, pledged or otherwise disposed of except upon compliance with the
provisions of such Warrant Agreement. By the acceptance of the shares of
capital stock evidenced by this certificate, the holder agrees to be bound
by such Warrant Agreement and all amendments thereto. A copy of such
Warrant Agreement has been filed at the office of the Company.



The securities represented by this certificate and the holder of such
securities are subject to the terms and conditions (including, without
limitation, voting agreements and restrictions on transfer) set forth in a
Shareholders Agreement, dated as of                     , 200     , a copy of which may be
obtained from the Company. No transfer of such securities will be made on
the books of the Company unless accompanied by evidence of compliance with
the terms of such agreement.”



     7. Lock-Up Agreement. The Holder hereby agrees that, during the period of duration
(not to exceed one hundred eighty (180) days) specified by the Company and an underwriter of Common
Stock or other securities of the Company in an agreement in connection with any initial public
offering of the Company’s securities, following the effective date of the registration statement
for a public offering of the Company’s securities filed under the Securities Act, it shall not, to
the extent requested by the Company and such underwriter, directly or indirectly sell, offer to
sell, contract to sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the Company held by it at any time during such period,
except Common Stock, if any, included in such registration; provided, that such “lock-up” period
applicable to the Holder shall not be greater than the shortest lock-up period restricting any
other shareholder of the Company executing lock-up agreements in connection with such registration.



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     8. No Voting Rights as a Shareholder. This Warrant does not entitle the Holder to any
voting rights or other rights as a shareholder of the Company.



     9. Registration Under the Securities Act of 1933.



          9.1 Piggyback Registration. If at any time during the period commencing on the date
that is six months following the closing date of an initial public offering of the Common Stock and
ending on the Expiration Date, the Company proposes to register any shares of its Common Stock
under the Securities Act on any form for registration thereunder (the “Registration
Statement”) for its own account or the account of shareholders (other than a registration
solely relating to (i) shares of Common Stock underlying a stock option, restricted stock, stock
purchase or compensation or incentive plan or of stock issued or issuable pursuant to any such
plan, or a dividend investment plan; (ii) a registration of securities proposed to be issued in
exchange for securities or assets of, or in connection with a merger or consolidation with, another
corporation or other entity; or (iii) a registration of securities proposed to be issued in
exchange for other securities of the Company (collectively, an “Excluded Registration”)),
it will at such time give prompt written notice to the Holder of its intention to do so (the
“Section 9.1 Notice”). Upon the written request of the Holder given to the Company within
ten (10) days after the giving of any Section 9.1 Notice setting forth the number of shares of
Warrant Stock and/or Other Securities intended to be disposed of by the Holder and the intended
method of disposition thereof, the Company will include or cause to be included in the Registration
Statement the shares of Warrant Stock and/or Other Securities which the Holder has requested to
register, to the extent provided in this Section 9 (a “Piggyback Registration”).
Notwithstanding the foregoing, in the event that prior to the Six-Month Post-IPO Exercise Date, the
Company agrees to (other than in an Excluded Registration) (i) register the resale of Common Stock
then held by any other shareholder of the Company or (ii) register the issuance of Common Stock
upon conversion of then outstanding securities, the Holder shall be similarly entitled to exercise
the rights provided by this Section 9.1. Notwithstanding the foregoing, the Company may, at any
time, withdraw or cease proceeding with any registration pursuant to this Section 9.1 if it shall
at the same time withdraw or cease proceeding with the registration of all of the Common Stock
originally proposed to be registered. The Company shall be obligated to file and cause the
effectiveness of only one (1) Piggyback Registration. The shares of Warrant Stock and/or Other
Securities subject to the piggyback registration rights set forth in the Section 9.1 Notice are
referred to for purposes of this Section 9 as the “Registrable Shares”.



          9.2 Company Covenants. Whenever required under this Section 9 to include Registrable
Shares in a Registration Statement, the Company shall, as expeditiously as reasonably possible:



          (i) Use its commercially reasonable efforts to cause such Registration Statement to become
effective and cause such Registration Statement to remain effective until the earlier of the Holder
having completed the distribution of all its Registrable Shares described in the Registration
Statement or six (6) months from the effective date of the Registration Statement (or such later
date by reason of suspensions the effectiveness as provided hereunder).



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The Company will also use
its commercially reasonable efforts to, during the period that such Registration Statement is
required to be maintained hereunder, file such post-effective amendments and supplements thereto as
may be required by the Securities Act and the rules and regulations thereunder or otherwise to
ensure that the Registration Statement does not contain any untrue statement of material fact or
omit to state a fact required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they are made, not misleading; provided,
however, that if applicable rules under the Securities Act governing the obligation to file a
post-effective amendment permits, in lieu of filing a post-effective amendment that (i) includes
any prospectus required by Section 10(a)(3) of the Securities Act or (ii) reflects facts or events
representing a material or fundamental change in the information set forth in the Registration
Statement, the Company may incorporate by reference information required to be included in (i) and
(ii) above to the extent such information is contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
in the Registration Statement.



          (ii) Prepare and file with the Unites States Securities and Exchange Commission (the
“SEC”) such amendments and supplements to such Registration Statement, and the prospectus
used in connection with such Registration Statement, as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all securities covered by such
Registration Statement.



          (iii) Furnish to the Holder such numbers of copies of a prospectus, including a preliminary
prospectus as amended or supplemented from time to time, in conformity with the requirements of the
Securities Act, and such other documents as it may reasonably request in order to facilitate the
disposition of Registrable Shares owned by the Holder; provided that, in no event, shall the
Company be required to incur printing expenses in excess of $1,000 in complying with its
obligations under this Section 9.2(iii).



          (iv) Use its commercially reasonable efforts to register and qualify the securities covered by
such Registration Statement under such other federal or state securities laws of such jurisdictions
as shall be reasonably requested by the Holder; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by the Securities
Act.



          (v) In the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter of such
offering.



          (vi) Notify the Holder, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, (a) when the Registration Statement or any post-effective
amendment and supplement thereto has become effective; (b) of the issuance by the SEC of any stop
order or the initiation of proceedings for that purpose (in which event the Company shall make use
commercially reasonable efforts to obtain the withdrawal of any order



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suspending effectiveness of
the Registration Statement. at the earliest possible time or prevent the entry thereof); (c) of the
receipt by the Company of any notification with respect to the suspension of the qualification of
the Registrable Shares for sale in any jurisdiction or the initiation of any proceeding for such
purpose; and (d) of the happening of any event as a result of which the prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing.



          (vii) Cause all such Registrable Shares registered hereunder to be listed on each securities
exchange or quotation service on which similar securities issued by the Company are then listed or
quoted.



          (viii) Provide a transfer agent and registrar for all Registrable Shares registered pursuant
hereunder and CUSIP number for all such Registrable Shares, in each case not later than the
effective date of such registration.



          (ix) Use commercially reasonable effort to furnish, on the date that such Registrable Shares
are delivered to the underwriters for sale, if such securities are being sold through underwriters,
(a) an opinion, dated as of such date and addressed to the Holder, of the counsel representing the
Company for the purposes of such resale registration, in form and substance as is customarily given
by Company counsel to underwriters, if any, engaged by the Holder and (b) a letter, dated as of
such date and addressed to the Holder, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified public accountants
to underwriters, if any, engaged by the Holder.



          9.3 Furnish Information. In connection with a registration in which the Holder is
participating, such Holder agrees to execute and deliver such other agreements as may be reasonably
requested by the Company or the underwriter. In addition, if requested by the Company or the
representative of the underwriters of Common Stock (or other securities) of the Company, the Holder
shall provide, within ten (10) days of such request, such information related to such Holder as may
be required by the Company or such representative in connection with the completion of any public
offering of the Company’s securities pursuant to a registration statement filed under the
Securities Act.



          9.4 Expenses of Company Registration. All expenses other than underwriting discounts
and commissions incurred in connection with registrations, filings or qualifications pursuant to
Section 9.1, including, without limitation, all registration, filing and qualification fees,
printers’ and accounting fees and fees, disbursements of counsel for the Company and disbursements
of counsel for the Holder up to $10,000 (the “Registration Expenses”) shall be
borne by the Company.



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          9.5 Underwriting Requirements. In connection with any offering involving an
underwriting of shares of the Company’s capital stock, the Company shall not be required under
Section 9.1 to include any of the Holder’s Registrable Shares in such underwriting unless the
Holder accepts the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (or by other persons entitled to select the underwriters), and then
only in such quantity as the underwriters determine in their sole and reasonable discretion will
not materially jeopardize the success of the offering by the Company, and the Holder enters into
such lock-up agreements as may be reasonably required of other selling shareholders in such
Registration Statement. If the total amount of securities, including Registrable Shares, requested
by shareholders to be included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole and reasonable discretion is compatible
with the success of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Shares, which the underwriters determine
in their sole and reasonable discretion will not materially jeopardize the success of the offering
(the securities so included to be apportioned pro rata among the selling shareholders according to
the total amount of securities entitled to be included therein owned by each selling shareholder or
in such other proportions as shall mutually be agreed to by such selling shareholders). For
purposes of the preceding parenthetical concerning apportionment, for any selling shareholder who
is a holder of Registrable Shares and is a partnership or corporation, the partners, retired
partners and shareholders of such holder, or the estates and family members of any such partners
and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed
to be a single “selling shareholder”, and any pro-rata reduction with respect to such “selling
shareholder” shall be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such “selling shareholder”, as defined in this
sentence.



          9.6 Indemnification. In the event that any Registrable Shares are included in a
Registration Statement under this Section 9.



          (i) To the extent permitted by law, the Company will promptly indemnify and hold harmless the
Holder, any underwriter (as defined in the Securities Act) for the Holder and each person, if any,
who controls the Holder or underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, or the Exchange Act, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a “Violation”): (i) any untrue
statement or alleged untrue statement of a material fact contained in such Registration Statement,
including any preliminary prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not misleading, or (iii)
any violation or alleged violation by the Company of the Securities Act, the Exchange Act, or any
rule or regulation promulgated under the Securities Act, or the Exchange
Act, and the Company will pay to the Holder, underwriter or controlling person, as incurred, any
legal or other expenses reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement
contained in this Section 9.6(i) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any
such case for any such loss, claim, damage, liability, or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by the Holder,
underwriter or controlling person.



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          (ii) To the extent permitted by law, the Holder will indemnify and hold harmless the Company,
its directors, officers, and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act, any underwriter, any other holder selling securities in
such Registration Statement and any controlling person of any such underwriter or other holder,
against any losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Securities Act, or the Exchange Act, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent) that such Violation
occurs in reliance upon and in conformity with written information furnished by the Holder
expressly for use in connection with such registration; and the Holder will pay, as incurred, any
legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to
this Section 9.6(ii), in connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained in
this Section 9.6(ii) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided, further, that, in no event shall any
indemnity under this Section 9.6(ii) exceed 20% of the cash value of the gross proceeds from the
offering received by the Holder.



          (iii) Promptly after receipt by an indemnified party under this Section 9.6 of notice of the
commencement of any action (including any governmental action), such indemnified party shall, if a
claim in respect thereof is to be made against any indemnifying party under this Section 9.6,
deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly notified, to assume the defense thereof with
counsel selected by the indemnifying party and approved by the indemnified party (whose approval
shall not be unreasonably withheld); provided, however, that an indemnified party (together with
all other indemnified parties which may be represented without conflict by one counsel) shall have
the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of the commencement of
any such action, if
prejudicial to its ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 9.6, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 9.6.



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          (iv) If the indemnification provided for in this Section 9.6 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim,
damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage, or expense as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the alleged omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access
to information, and opportunity to correct or prevent such statement or omission.



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



          (vi) The obligations of the Company and the Holder under this Section 9.6 shall survive the
completion of any offering of Registrable Shares in a Registration Statement under this Section 9,
and otherwise.



          9.7. Reports Under Securities Exchange Act of 1934. With a view to making available
to the Holder the benefits of Rule 144 under the Securities Act (“Rule 144”) and any other
rule or regulation of the SEC that may at any time permit the Holder to sell shares of the
Company’s Common Stock to the public without registration, commencing immediately after the date on
which a registration statement filed by the Company under the Securities Act becomes effective, the
Company agrees to use its best efforts to:



          (i) make and keep public information available, as those terms are understood and defined in
Rule 144;



          (ii) file with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and



          (iii) furnish to the Holder, so long as the Holder owns any Registrable Shares, forthwith upon
request (i) a copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (ii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant to such form.



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          9.8. Permitted Transferees. The rights to cause the Company to register Registrable
Shares granted to the Holder by the Company under this Section 9 may be assigned in full by a
Holder in connection with a transfer by the Holder of its Registrable Shares if: (a) the Holder
gives prior written notice to the Company; (b) such transferee agrees to comply with and be bound
by the terms and provisions of this Agreement; (c) such transfer is otherwise in compliance with
this Agreement and (d) such transfer is otherwise effected in accordance with applicable securities
laws. Except as specifically permitted by this Section 9.8, the rights of a Holder with respect to
Registrable Shares as set out herein shall not be transferable to any other person, and any
attempted transfer shall cause all rights of the Holder therein to be forfeited.



          9.9 Termination of Registration Rights. The Holder shall no longer be entitled to
exercise any registration rights provided for in Section 9.1 after such time at which all
Registrable Shares held by the Holder can be sold in any three-month period without registration in
compliance with Rule 144(k) of the Securities Act.



     10. Notices. All notices required hereunder shall be in writing and shall be deemed
given when telegraphed, delivered personally or within two (2) days after mailing when mailed by
certified or registered mail, return receipt requested, to the Company at its principal office, or
to the Holder at the address set forth on the record books of the Company or at such other address
of which the Company or the Holder has been advised by notice hereunder. A copy of any notices
provided to the Company hereunder shall be concurrently provided to the Company’s legal counsel
addressed to Hunton & Williams, LLP, Attn: David E. Wells, Esq., 1111 Brickell Avenue, Suite 2500,
Miami, Florida 33131.



     11. Applicable Law. The Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the State of Florida, without giving effect to the
choice of law rules thereof.



     12. Modification of the Terms. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the Holder and the
Company.



     13. Venue. The parties irrevocably submit to the exclusive jurisdiction of the courts
of State of Florida located in Broward County and federal courts of the United States for the
Southern District of Florida in respect of the interpretation and of the provisions of this
Agreement and in respect of the transactions contemplated hereby.



     14 Waiver of Jury Trial. THE COMPANY AND THE HOLDER HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER
OF THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY MADE BY THE HOLDER AND THE COMPANY.



     15. Payment of Certain Taxes and Charges. The Company shall not be required to issue
or deliver any certificate for shares of Common Stock or other securities upon the exercise of this
Warrant or to register any transfer of this Warrant until any applicable transfer tax and any other
taxes or governmental charges that the Company may be required by law to collect in respect of such
exercise or transfer shall have been paid, such tax being payable by Holder at the time of
surrender for the exercise or transfer.



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     16. Register. The Company or its stock transfer agent, if any, will maintain a
register containing the name and address of the Holder of this Warrant and of the holders of other
warrants of like tenor issued simultaneously hereunder. Any Holder may change its, his or her
address as shown on the warrant register by written notice to the Company requesting such change.
The Company may treat the Holder of this Warrant as the absolute owner hereof for all purposes and
shall not be bound to recognize any equitable or other claim to or interest in this Warrant on the
part of any other person.



     17. Specific Performance. The parties hereto acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Warrant were not performed in
accordance with their specific terms or were otherwise breached. Accordingly, it is agreed that
they shall be entitled to an injunction or injunctions to prevent breaches of the provisions of
this Warrant and to enforce specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any other remedy to which
they may be entitled at law or equity.



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     IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its behalf, in its
corporate name, by its duly authorized officer, all as of the day and year first above written.



	 	 	 	 	 
	 	BIOHEART, INC.

 	 
	 	By:  	/s/
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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