THIS
CONSULTING AGREEMENT (this “Agreement”), dated
March 18, 2004, (the “Effective Date”), is made
and entered by and between BIOHEART, INC., a Florida corporation
(the “Company”) and Richard Spencer (the
“Consultant”).
A. The
Company believes that the Consultant’s Services will be
extremely beneficial to the Company and wishes to obtain such
Services and the benefit of the Consultant’s knowledge and
experience.
B. The
Company desires to retain the services of the Consultant and the
Consultant desires to provide services to the Company, subject to
the terms and conditions set forth in this Agreement.
O P E R A T I V
E P R O V I S I O N S
In consideration
of the foregoing recitations, the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby covenant and agree as
follows:
1.1
Engagement of Consultant . The Company hereby engages
the Consultant and Consultant hereby agrees to provide consulting
services as set forth in Section 1.2 of this Agreement (the
“Services”).
1.2
Services to be Provided .
A. Services. During the term of this Agreement, the
Consultant personally shall perform the following services:
(i) assisting Bioheart in reaching its financial goals;
(ii) providing leadership training to Bioheart’s board
of directors, officers, employees and consultants; and
(iii) appearing at selected events as mutually agreed upon by
Consultant and Bioheart (collectively referred to herein as the
“Services”).
B. Performance of Services. The Consultant is responsible
for reasonably determining the method, details and means of
performing the services required under this Agreement.
Consultant’s business and affairs shall be conducted in
accordance with all applicable federal, state and local laws and
regulations. Such consultation may be by telephone, in writing or
by other method of communication which the Company and the
Consultant mutually agree.
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C. Hours. Notwithstanding any other provision of this
Agreement, it is agreed that the Consultant shall not be required
to devote any minimum amount of time during any particular week or
year, but shall perform services pursuant to this Agreement on an
“as needed” basis at such times and for such periods as
the Company and Consultant mutually agree. The Consultant shall use
his best efforts in good faith to provide consulting services when
requested to do so by the Company.
1.3 Term of
Agreement . The term of this Agreement shall commence on
the Effective date and shall continue until March 18, 2007
(the “Term”), unless terminated in accordance with the
provisions of Article 3 hereof. This Agreement may be renewed
for an additional period(s) only upon the mutual written agreement
of the parties.
1.4 Nature
of Consulting Relationship . It is agreed and understood by
the parties to this Agreement that, for all purposes, during the
term of this Agreement, the Consultant shall serve solely as an
independent contractor of the Company and shall not be an employee
of the Company in any capacity. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and
Company. As an independent contractor, the Consultant
(a) shall accept any directions issued by the Company
pertaining to the goals to be attained and the results to be
achieved by him, but shall be solely responsible for the manner and
hours in which he will perform his services under this Agreement,
(b) shall not be entitled to any employee or fringe benefits
available to employees of the Company, and (c) shall be solely
responsible for the payment of any federal, state and local taxes
applicable to the fees and expenses paid or payable by the Company
in connection with Consultant’s engagement.
2.1
Compensation . In consideration for the Services to be
provided by the Consultant pursuant to Section 1.2 hereof,
upon execution of this Agreement and subject to the execution of
all other applicable agreements, the Company shall grant to
Consultant an option to purchase 80,000 shares of the common stock
of the Company, par value $.001 per share (the
“Option”), at an exercise price equal to $3.50 per
share, in accordance with the terms, conditions and provisions of
the Company’s 1999 Directors and Consultants Stock Option
Plan, and pursuant to the terms, conditions and provisions of the
Stock Option Agreement, attached hereto as
Exhibit A (the “Option Agreement”),
to be entered into by and between the Company and the Consultant.
The Option shall vest equally over a three-year period or
immediately upon a “Change in Control” (as defined in
the Option Agreement), whichever occurs first.
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2.2 Expense
Reimbursement . Upon the submission of proper
substantiation by the Consultant, and subject to such rules and
guidelines as the Company may from time to time adopt, the Company
shall reimburse the Consultant for all reasonable expenses actually
paid or incurred by the Consultant during the Term in the course of
and pursuant to the business of the Company, including without
limitation travel and lodging expenses necessarily incurred in
performing the Services required hereunder. The Consultant shall
account to the Company in writing for all expenses for which
reimbursement is sought and shall supply to the Company copies of
all relevant invoices, receipts or other evidence reasonably
requested by the Company.
3.1
Termination . Notwithstanding anything to the contrary
contained in this Agreement:
A. Expiration . This Agreement shall terminate upon the
expiration of the Term as set forth in Section 1.3;
or
B. Breach . This Agreement shall terminate on the date on
which one party (the “Terminating Party”) provides
written notice of such termination to the other party (the
“Breaching Party”) by reason of the fact that the
Breaching Party has materially breached his or its obligations
under this Agreement, which breach is not cured by the Breaching
Party within thirty days after the Terminating Party has given
written notice of such breach to the Breaching Party; provided that
the Terminating Party shall not be obligated to offer notice and an
opportunity to cure if the breach is not curable.
C. Termination by the Company . The Company may terminate
this Agreement as follows:
(i) This
Agreement shall terminate upon the death of Consultant , and
the Company shall have no further obligation under this Agreement
to make any payments to, or bestow any benefits on, the Consultant
from and after the date of Consultant’s death, other than
payments or benefits accrued and due and payable to Consultant
prior to the date of his death.
(ii) This
Agreement shall terminate if as a result of Consultant’s
incapacity due to accident or illness, Consultant shall have been
unable to satisfactorily perform his Duties under this Agreement
for a period of thirty consecutive days, or for an aggregate of
forty-five days in any consecutive three-month period. In the event
of a termination due to disability under this Section, the Company
shall have no further obligation under this Agreement to make any
payments to, or bestow any benefits on, Consultant from and after
the date of the termination, other than payments or benefits
accrued and due and payable to it prior to the date of termination
pursuant to this Agreement.
(iii)
The Company may immediately terminate this Agreement for Cause at
any time.
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