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”).
R E C I T A T I O N S
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.
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.
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.