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

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(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. 


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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 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 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. 

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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 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







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. 

6






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
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.

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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. 

8







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 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. 

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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, 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.


10







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 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.

11







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

12







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 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.


13







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.

14







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 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 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. 

15







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


16







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. 

17







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 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 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. 

18







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