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.
_______________, 2008 (the “Effective
Date”)
(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
“ 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
_______________ (subject to adjustment in accordance with
Section 5 below) (the “ Subject Shares ”)
fully paid and non-assessable shares of the Common Stock (defined
below) at a price of [$___] per share, subject to adjustment in
accordance with Section 5 below (the “ Exercise
Price ”). This Warrant is being issued pursuant to that
certain Subscription Agreement, dated as of ____________, 2008, by
and between the Company and the Initial Holder (the “
Subscription Agreement ”).
The term “
Common Stock ” means the Common Stock, par value $.001
per share, of the Company as constituted on the Effective Date (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 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
the Holder.
1
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.
(a) In
accordance with the procedures set forth in Section 1(b) below,
this Warrant will become exercisable with respect to all of the
Subject Shares on the date that is six months and one day following
the Effective Date (the “ First Exercise Date
”). Subject to the foregoing exercise schedule, the Holder
may exercise this Warrant, at any time, or from time to time, until
the third year anniversary of the Effective Date (the “
Expiration Date ”).
(b) During
the period that this Warrant is exercisable in accordance with
Sections 1(a), the Holder may exercise this Warrant, in whole
or in part, 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,
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
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.
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.
(a) Subject
to compliance with any applicable federal and state securities laws
and the conditions set forth in Sections 4(b) below, this Warrant
may be transferred by the Holder with respect to any or all of the
shares purchasable hereunder at any time after the First Exercise
Date. No transfer of this Warrant shall be permitted on or before
the First Exercise Date. 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 B 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
2
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 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 a person
that is an “accredited investor” within the meaning of
Regulation D under the Securities Act.
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)&n
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