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Share Name | Share Symbol | Market | Type |
---|---|---|---|
US Stem Cell Inc (CE) | USOTC:USRM | OTCMarkets | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 0.000001 | 0.00 | 01:00:00 |
Florida (State or other jurisdiction of incorporation or organization) |
65-0945967 (I.R.S. Employer Identification No.) |
Large accelerated filer o | Accelerated filer o |
Non-accelerated filer o |
Smaller reporting company x |
(Do not check if a smaller reporting company) |
PART I | Financial Information | Page Number |
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Item 1. |
Financial Information |
3 | ||||||||
Condensed Balance Sheets September 30, 2014 (Unaudited) and December 31, 2013 |
4 | |||||||||
Unaudited Condensed Statements of Operations (Unaudited) Three and Nine Months Ended September 30, 2014 and 2013
|
5 | |||||||||
Unaudited Condensed Statements of Stockholders Deficit (Unaudited) Nine Months Ended September 30, 2014
|
6 | |||||||||
Unaudited Condensed Statements of Cash Flows (Unaudited) Nine Months Ended September 30, 2014 and 2013
|
7 | |||||||||
Notes to Unaudited Condensed Financial Statements |
8 | |||||||||
Item 2. |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
28 | ||||||||
Item 3. |
Quantitative and Qualitative Disclosures About Market Risk |
37 | ||||||||
Item 4. |
Controls and Procedures |
37 | ||||||||
PART II |
Other Information |
|||||||||
Item 1. |
Legal Proceedings |
37 | ||||||||
Item 1A. |
Risk Factors |
37 | ||||||||
Item 2. |
Unregistered Sales of Equity Securities and Use of Proceeds |
37 | ||||||||
Item 3. |
Defaults Upon Senior Securities |
38 | ||||||||
Item 4. |
Mine Safety Disclosures |
38 | ||||||||
Item 5. |
Other Information |
38 | ||||||||
Item 6. |
Exhibits |
38 | ||||||||
SIGNATURES |
45 | |||||||||
EX-31.1 |
Management Certification |
|||||||||
EX-32.1 |
Sarbanes-Oxley Act |
September 30, 2014 |
December 31, 2013 |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
(unaudited) |
||||||||||
ASSETS |
||||||||||
Current assets: |
||||||||||
Cash and cash equivalents |
$ | 46,592 | $ | 46,227 | ||||||
Accounts receivable, net |
153,863 | 19,913 | ||||||||
Prepaid and other |
26,164 | 784 | ||||||||
Total current assets |
226,619 | 66,924 | ||||||||
Property and equipment, net |
13,431 | 9,055 | ||||||||
Other assets |
8,404 | 10,160 | ||||||||
Total assets |
$ | 248,454 | $ | 86,139 | ||||||
LIABILITIES AND STOCKHOLDERS DEFICIT |
||||||||||
Current liabilities: |
||||||||||
Accounts payable |
$ | 2,068,256 | $ | 2,382,267 | ||||||
Accrued expenses |
2,291,809 | 4,480,335 | ||||||||
Advances, related party |
141,759 | 416,198 | ||||||||
Deposits |
478,286 | 478,286 | ||||||||
Subordinated debt, related party |
1,500,000 | 1,500,000 | ||||||||
Notes payable, related party |
2,377,271 | 2,241,477 | ||||||||
Notes payable, net of debt discount |
1,478,934 | 1,930,841 | ||||||||
Total current liabilities |
10,336,315 | 13,429,404 | ||||||||
Long term debt: |
||||||||||
Derivative liability |
725,122 | 403,811 | ||||||||
Stockholders deficit: |
||||||||||
Preferred stock, par value $0.001; 20,000,000 shares authorized, 20,000,000 issued and outstanding |
20,000 | 20,000 | ||||||||
Common stock, par value $0.001; 2,000,000,000 and 950,000,000 shares authorized, respectively, 533,694,420 and 379,787,745 shares issued and
outstanding as of September 30, 2014 and December 31, 2013, respectively |
533,694 | 379,788 | ||||||||
Additional paid in capital |
107,851,505 | 103,819,119 | ||||||||
Common stock subscription |
210,000 | 215,000 | ||||||||
Accumulated deficit |
(119,428,182 | ) | (118,180,983 | ) | ||||||
Total stockholders deficit |
(10,812,983 | ) | (13,747,076 | ) | ||||||
Total liabilities and stockholders deficit |
$ | 248,454 | $ | 86,139 |
Three months ended September 30, | Nine months ended September 30, | ||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
2014 |
2013 |
2014 |
2013 |
||||||||||||||||
Revenue: |
|||||||||||||||||||
Products |
$ | 281,752 | $ | 25,350 | $ | 869,012 | $ | 25,350 | |||||||||||
Services |
297,784 | 6,309 | 694,852 | 30,630 | |||||||||||||||
Total revenue |
579,536 | 31,659 | 1,563,864 | 55,980 | |||||||||||||||
Cost and operating expenses: |
|||||||||||||||||||
Cost of sales |
523,222 | | 889,509 | | |||||||||||||||
Research and development |
8,581 | 158,381 | 33,916 | 494,762 | |||||||||||||||
Marketing, general and administrative |
1,512,706 | 940,354 | 3,182,397 | 1,750,276 | |||||||||||||||
Depreciation and amortization |
1,759 | 77 | 3,745 | 1,327 | |||||||||||||||
Total operating expenses |
2,046,268 | 1,098,812 | 4,109,567 | 2,246,365 | |||||||||||||||
Net loss from operations |
(1,466,732 | ) | (1,067,153 | ) | (2,545,703 | ) | (2,190,385 | ) | |||||||||||
Other income (expenses): |
|||||||||||||||||||
Gain on settlement of debt |
85,229 | | 2,272,283 | 1,004,224 | |||||||||||||||
Gain on change of fair value of derivative liability |
239,296 | 129,298 | 61,339 | 39,885 | |||||||||||||||
Other income |
| | | 939 | |||||||||||||||
Interest expense |
(331,026 | ) | (208,914 | ) | (1,035,118 | ) | (1,270,663 | ) | |||||||||||
Total other income (expenses) |
(6,501 | ) | (79,616 | ) | 1,298,504 | (225,615 | ) | ||||||||||||
Net loss before income taxes |
(1,473,233 | ) | (1,146,769 | ) | (1,247,199 | ) | (2,416,000 | ) | |||||||||||
Income taxes (benefit) |
| | | | |||||||||||||||
NET LOSS |
$ | (1,473,233 | ) | $ | (1,146,769 | ) | $ | (1,247,199 | ) | $ | (2,416,000 | ) | |||||||
Net loss per common share, basic and diluted |
$ | (0.003 | ) | $ | (0.005 | ) | $ | (0.003 | ) | $ | (0.011 | ) | |||||||
Weighted average number of common shares outstanding, basic and diluted |
519,135,426 | 246,229,899 | 464,607,869 | 217,392,664 |
Preferred stock | Common stock | Additional Paid in |
Subscription | Accumulated | |||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Shares |
Amount |
Shares |
Amount |
Capital |
Receivable |
Deficit |
Total |
||||||||||||||||||||||||||||
Balance, December 31, 2013 |
20,000,000 | $ | 20,000 | 379,787,745 | $ | 379,788 | $ | 103,819,119 | $ | 215,000 | $ | (118,180,983 | ) | $ | (13,747,076 | ) | |||||||||||||||||||
Common stock issued in settlement of accounts payable |
| | 45,232,118 | 45,232 | 946,285 | | | 991,517 | |||||||||||||||||||||||||||
Common stock issued in connection with settlement of other debt |
| | 64,434,256 | 64,434 | 1,832,646 | | | 1,897,080 | |||||||||||||||||||||||||||
Common stock issued for services |
| | 3,839,832 | 3,840 | 180,151 | | | 183,991 | |||||||||||||||||||||||||||
Common stock issued upon exercise of warrants |
| | 11,918,181 | 11,918 | 124,082 | | | 136,000 | |||||||||||||||||||||||||||
Proceeds from issuance of common stock |
| | 28,482,288 | 28,482 | 404,769 | (5,000 | ) | | 428,251 | ||||||||||||||||||||||||||
Fair value of vesting warrants issued in connection with revenue share arrangement |
| | | | 136,837 | | | 136,837 | |||||||||||||||||||||||||||
Stock based compensation |
| | | | 407,616 | | | 407,616 | |||||||||||||||||||||||||||
Net loss |
| | | | | | (1,247,199 | ) | (1,247,199 | ) | |||||||||||||||||||||||||
Balance, September 30, 2014 |
20,000,000 | $ | 20,000 | 533,694,420 | $ | 533,694 | $ | 107,851,505 | $ | 210,000 | $ | (119,428,182 | ) | $ | (10,812,983 | ) |
Nine months ended September 30, | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
2014 |
2013 |
||||||||||
CASH FLOWS FROM OPERATING ACTIVITIES: |
|||||||||||
Net loss |
$ | (1,247,199 | ) | $ | (2,416,000 | ) | |||||
Adjustments to reconcile net loss to net cash used in operating activities: |
|||||||||||
Depreciation and amortization |
3,745 | 1,328 | |||||||||
Bad debt expense |
28,732 | | |||||||||
Amortized discount on convertible debt |
343,592 | 295,750 | |||||||||
Gain on change in fair value of derivative liability |
(61,339 | ) | (39,885 | ) | |||||||
Gain on settlement of debt |
(2,272,283 | ) | (1,004,224 | ) | |||||||
Non-cash payment of interest |
385,501 | 168,350 | |||||||||
Warrants issued in connection with revenue share arrangement |
136,837 | | |||||||||
Related party notes payable issued for services rendered |
800,000 | 500,000 | |||||||||
Common stock issued in connection with accounts payable |
| 2,500 | |||||||||
Common stock issued in exchange for services |
38,750 | 40,519 | |||||||||
Preferred stock issued in settlement of debt and forbearance agreement |
| 274,050 | |||||||||
Stock based compensation |
407,616 | 102,674 | |||||||||
(Increase) decrease in: |
|||||||||||
Receivables |
(162,682 | ) | (7,553 | ) | |||||||
Inventory |
| 62,953 | |||||||||
Prepaid and other current assets |
(23,624 | ) | 41,533 | ||||||||
Increase (decrease) in: |
|||||||||||
Accounts payable |
628,684 | (76,240 | ) | ||||||||
Accrued expenses |
246,486 | 485,518 | |||||||||
Net cash used in operating activities |
(747,184 | ) | (1,568,727 | ) | |||||||
CASH FLOWS FROM INVESTING ACTIVITIES: |
|||||||||||
Acquisitions of property and equipment |
(8,121 | ) | | ||||||||
Net cash used by investing activities |
(8,121 | ) | | ||||||||
CASH FLOWS FROM FINANCING ACTIVITIES: |
|||||||||||
Bank overdraft |
| (89 | ) | ||||||||
Proceeds from issuance of common stock, net |
428,251 | 1,100,000 | |||||||||
(Repayments (proceeds) from related party advances |
26,759 | 180,500 | |||||||||
Proceeds from exercise of stock options and warrants |
136,000 | | |||||||||
Proceeds from notes payable |
388,000 | 295,000 | |||||||||
Repayments of notes payable |
(223,340 | ) | | ||||||||
Net cash provided in financing activities |
755,670 | 1,575,411 | |||||||||
Net increase in cash and cash equivalents |
365 | 6,684 | |||||||||
Cash and cash equivalents, beginning of period |
46,227 | | |||||||||
Cash and cash equivalents, end of period |
$ | 46,592 | $ | 6,684 | |||||||
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION |
|||||||||||
Interest paid |
$ | 161,532 | $ | 513,986 | |||||||
Income taxes paid |
$ | | $ | | |||||||
Non-cash financing activities: |
|||||||||||
Common stock issued in settlement of notes payable |
$ | 938,075 | $ | 345,000 | |||||||
Common stock issued in settlement of accounts payable |
$ | 857,445 | $ | 149,239 | |||||||
Common stock issued in settlement of related party notes and advances payable |
$ | 862,880 | $ | | |||||||
Preferred stock issued in settlement of notes payable |
$ | | $ | 70,000 |
|
September 30, 2014 |
|
December 31, 2013 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Laboratory and medical equipment |
$ | 352,358 | $ | 352,358 | ||||||
Furniture, fixtures and equipment |
125,634 | 125,634 | ||||||||
Computer equipment |
47,646 | 39,525 | ||||||||
Leasehold improvements |
362,046 | 362,046 | ||||||||
887,684 | 879,563 | |||||||||
Less accumulated depreciation and amortization |
(874,253 | ) | (870,508 | ) | ||||||
$ | 13,431 | $ | 9,055 |
|
September 30, 2014 |
|
December 31, 2013 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
License and royalty fees |
$ | | $ | 2,122,130 | ||||||
Amounts payable to the Guarantors of the Companys loan agreement with Bank of America and Seaside Bank, including fees and interest
|
1,493,961 | 1,373,775 | ||||||||
Interest payable on notes payable |
666,370 | 714,180 | ||||||||
Vendor accruals and other |
114,259 | 120,692 | ||||||||
Employee commissions, compensation, etc. |
17,219 | 149,558 | ||||||||
$ | 2,291,809 | $ | 4,480,335 |
|
September 30, 2014 |
|
December 31, 2013 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Seaside Bank note payable. |
$ | 980,000 | $ | 980,000 | ||||||
August 2008 Unsecured Promissory Note |
| 500,000 | ||||||||
Hunton & Williams notes payable |
384,972 | 384,972 | ||||||||
Asher notes payable |
175,500 | 143,000 | ||||||||
Daniel James Management note payable |
50,000 | | ||||||||
Fourth Man, LLC note payable |
75,000 | 35,000 | ||||||||
Total notes payable |
1,665,472 | 2,042,972 | ||||||||
Less unamortized debt discount |
(186,538 | ) | (112,131 | ) | ||||||
Total notes payable net of unamortized debt discount |
$ | 1,478,934 | $ | 1,930,841 |
|
Shares |
|
Weighted- Average Exercise Price |
|
Weighted- Average Remaining Contractual Term (in years) |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Options outstanding at January 1, 2013 |
7,853,376 | $ | 0.67 | 8.2 | ||||||||||
Granted |
17,400,000 | $ | 0.016 | 9.9 | ||||||||||
Exercised |
| $ | ||||||||||||
Forfeited/Expired |
(1,340,433 | ) | $ | 1.08 | ||||||||||
Options outstanding at December 31, 2013 |
23,912,943 | $ | 0.15 | 9.0 | ||||||||||
Granted |
39,648,487 | $ | 0.023 | 10.0 | ||||||||||
Exercised |
| |||||||||||||
Forfeited/Expired |
(74,443 | ) | $ | 4.8 | ||||||||||
Options outstanding at September 30, 2014 |
63,486,987 | $ | 0.063 | 9.1 | ||||||||||
Options exercisable at September 30, 2014 |
24,576,000 | $ | 0.13 | 8.7 | ||||||||||
Available for grant at September 30, 2014 |
42,951,513 |
Options Outstanding |
Options Exercisable |
|||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Shares |
|
Weighted- Average Remaining Contractual Term |
|
Weighted- Average Exercise Price |
|
Shares |
|
Weighted- Average Exercise Price |
|||||||||||||
$0.00 $0.70 |
62,938,487 | 9.2 | $ | 0.03 | 24,027,500 | $ | 0.03 |
|||||||||||||||
$0.71 $1.28 |
149,930 | 4.0 | $ | 0.81 | 149,930 | $ | 0.81 |
|||||||||||||||
$5.25 $5.67 |
373,858 | 1.6 | $ | 5.55 | 373,858 | $ | 5.55 |
|||||||||||||||
$7.69 |
24,712 | 1.8 | $ | 7.69 | 24,712 | $ | 7.69 |
|||||||||||||||
63,486,987 | 9.1 | $ | 0.063 | 24,576,000 | $ | 0.13 |
|
Shares |
|
Weighted- Average Exercise Price |
|
Weighted- Average Remaining Contractual Term (in years) |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Outstanding at January 1, 2013 |
74,073,322 | $ | 0.37 | 4.5 | ||||||||||
Issued |
50,350,536 | $ | 0.16 | 9.2 | ||||||||||
Exercised |
| $ | 0.00 | |||||||||||
Forfeited |
(6,345,002 | ) | $ | 0.38 | ||||||||||
Outstanding at December 31, 2013 |
118,078,856 | $ | 0.22 | 6.3 | ||||||||||
Issued |
36,556,846 | $ | 0.02 | 7.4 | ||||||||||
Exercised |
(11,918,181 | ) | $ | 0.01 | ||||||||||
Expired |
(6,765,430 | ) | $ | 0.11 | ||||||||||
Outstanding at September 30, 2014 |
135,952,091 | $ | 0.19 | 6.1 | ||||||||||
Exercisable at September 30, 2014 |
126,143,578 | $ | 0.11 | 6.2 |
Warrants Outstanding |
Warrants Exercisable |
|||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Shares |
|
Weighted- Average Remaining Contractual Term |
|
Weighted- Average Exercise Price |
|
Shares |
|
Weighted- Average Exercise Price |
|||||||||||||
$0.01 $0.50 |
129,702,958 | 6.1 | $ | 0.02 | 121,438,895 | $ | 0.02 |
|||||||||||||||
$0.52 $0.68 |
2,699,675 | 4.6 | $ | 0.58 | 2,699,675 | $ | 0.58 |
|||||||||||||||
$0.70 $1.62 |
848,176 | 5.3 | $ | 0.71 | 848,176 | $ | 0.71 |
|||||||||||||||
$5.67 $7.69 |
2,701,282 | 8.1 | $ | 7.55 | 1,156,832 | $ | 7.35 |
|||||||||||||||
135,952,091 | 6.1 | $ | 0.19 | 126,143,578 | $ | 0.11 |
Excess Share Derivative |
Warrant Liability |
Debt Derivative |
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Balance, December 31, 2012 |
$ | 390,048 | 221,179 | $ | | |||||||||
Total (gains) losses |
||||||||||||||
Initial fair value of debt derivative at note issuance |
| 673,219 | ||||||||||||
Initial fair value of derivative relating to reset warrants |
| | | |||||||||||
Mark-to-market at December 31, 2013: |
84,906 | (74,324 | ) | (39,761 | ) | |||||||||
Transfers out of Level 3 upon increase in authorized shares |
(474,954 | ) | | | ||||||||||
Transfers out of Level 3 upon conversion and settlement of notes |
(376,502 | ) | ||||||||||||
Balance, December 31, 2013 |
$ | | $ | 146,855 | $ | 256,956 | ||||||||
Total (gains) losses |
||||||||||||||
Initial fair value of debt derivative at note issuance |
| | 773,500 | |||||||||||
Mark-to-market at September 30, 2014: |
| 218,711 | (280,050 | ) | ||||||||||
Transfers out of Level 3 upon conversion of notes payable |
| | (390,850 | ) | ||||||||||
Balance, September 30, 2014 |
$ | | $ | 365,566 | $ | 359,556 | ||||||||
Net (loss) gain for the period included in earnings relating to the liabilities held at September 30, 2014 |
$ | | $ | (218,711 | ) | $ | 280,050 |
|
our financial position and historical financial performance; | |
|
arms length sales of our common stock; | |
|
the development status of our product candidates; | |
|
the business risks we face; | |
|
vesting restrictions imposed upon the equity awards; and | |
|
an evaluation and benchmark of our competitors; and | |
|
prospects of a liquidity event. |
Exhibit No. |
Exhibit Description |
|||||
---|---|---|---|---|---|---|
3.1(6) |
Amended and Restated Articles of Incorporation of the registrant, as amended |
|||||
3.2(9) |
Articles of Amendment to the Articles of Incorporation of the registrant |
|||||
3.2(a)(36) |
Articles of Amendment to the Articles of Incorporation of the registrant |
|||||
3.3(8) |
Amended and Restated Bylaws |
|||||
4.1(5) |
Loan and Security Agreement, dated as of May 31, 2007 by and between BlueCrest Capital Finance, L.P. and the
registrant |
|||||
4.2(12) |
Notice of Event of Default, from BlueCrest Venture Finance Master Fund Limited to the Company, dated January 28,
2009 |
|||||
4.3(12) |
Notice of Acceleration, from BlueCrest Venture Finance Master Fund Limited to the Company, dated February 2,
2009 |
|||||
4.4(13) |
Amendment to Loan and Security Agreement, between the Company and BlueCrest Venture Finance Master Fund Limited, dated as of April 2,
2009 |
|||||
4.5(13) |
Grant of Security Interest (Patents), between the Company and BlueCrest Venture Finance Master Fund Limited, dated as of April 2,
2009 |
Exhibit No. |
Exhibit Description | |||||
---|---|---|---|---|---|---|
4.6(13) |
Security Agreement (Intellectual Property), between the Company and BlueCrest Venture Finance Master Fund Limited, dated as of April
2, 2009 |
|||||
4.7(13) |
Subordination Agreement, by Hunton & Williams, LLP in favor of BlueCrest Venture Finance Master Fund Limited, entered into and
effective April 2, 2009 |
|||||
4.8(13) |
Amended and Restated Promissory Note, dated April 2, 2009, by the Company to BlueCrest Venture Finance Master Fund
Limited |
|||||
4.9(13) |
Warrant to purchase 1,315,542 shares of the registrants common stock, dated April 2, 2009, issued to BlueCrest Venture Finance
Master Fund Limited |
|||||
4.10(14) |
Warrant to purchase 451,043 shares of the registrants common stock, dated April 2, 2009, issued to Rogers Telecommunications
Limited |
|||||
4.11(14) |
Warrant to purchase 173,638 shares of the registrants common stock, dated April 2, 2009, issued to Hunton & Williams,
LLP |
|||||
4.12(4) |
Warrant to purchase shares of the registrants common stock issued to Howard J. Leonhardt and Brenda
Leonhardt |
|||||
4.12(19) |
10% Convertible Promissory Note Due July 23, 2010, in the amount of $20,000, payable to Dana Smith |
|||||
4.13(19) |
10% Convertible Promissory Note Due July 23, 2010, in the amount of $100,000, payable to Bruce Meyers |
|||||
4.14(19) |
Registration Rights Agreement, dated July 23, 2009 |
|||||
4.15(4) |
Warrant to purchase shares of the registrants common stock issued to the R&A Spencer Family Limited
Partnership |
|||||
4.15(19) |
Subordination Agreement, dated July 23, 2009 |
|||||
4.16(19) |
Note Purchase Agreement, dated July 23, 2009 |
|||||
4.17(19) |
Closing Confirmation of Conversion Election, dated July 23, 2009 |
|||||
4.20(6) |
Warrant to purchase shares of the registrants common stock issued to Samuel S. Ahn, M.D. |
|||||
4.23(7) |
Warrant to purchase shares of the registrants common stock issued to Howard and Brenda Leonhardt |
|||||
4.27(11) |
Form of Warrant Agreement for October 2008 Private Placement |
|||||
4.30(19) |
10% Convertible Promissory Note Due July 23, 2010, in the amount of $100,000, payable to Bruce Meyers |
|||||
4.31 (34) |
Series A Convertible Preferred Stock |
|||||
4.32 (35) |
Amendment to the Series A Convertible Preferred Stock |
|||||
4.33 (37) |
Senior Convertible Note dated October 7, 2014. |
|||||
10.1(1) |
1999 Officers and Employees Stock Option Plan |
|||||
10.2(1) |
1999 Directors and Consultants Stock Option Plan |
|||||
10.3(1) |
Form of Option Agreement under 1999 Officers and Employees Stock Option Plan |
|||||
10.4(3) |
Form of Option Agreement under 1999 Directors and Consultants Stock Option Plan |
|||||
10.5**(4) |
Employment Letter Agreement between the registrant and Scott Bromley, dated August 24, 2006. |
|||||
10.6(1) |
Lease Agreement between the registrant and Sawgrass Business Plaza, LLC, as amended, dated November 14, 2006. |
|||||
10.7(1) |
Asset Purchase Agreement between the registrant and Advanced Cardiovascular Systems, Inc., dated June 24,
2003. |
|||||
10.8(4) |
Conditionally Exclusive License Agreement between the registrant, Dr. Peter Law and Cell Transplants International, LLC, dated
February 7, 2000, as amended. |
Exhibit No. |
Exhibit Description | |||||
---|---|---|---|---|---|---|
10.9(4) |
Loan Guarantee, Payment and Security Agreement, dated as of June 1, 2007, by and between the registrant, Howard J. Leonhardt and
Brenda Leonhardt |
|||||
10.10(4) |
Loan Guarantee, Payment and Security Agreement, dated as of June 1, 2007, by and between the registrant and William P. Murphy Jr.,
M.D. |
|||||
10.11(4) |
Loan Agreement, dated as of June 1, 2007, by and between the registrant and Bank of America, N.A. |
|||||
10.13(4) |
Warrant to purchase shares of the registrants common stock issued to Howard J. Leonhardt and Brenda
Leonhardt |
|||||
10.14(4) |
Warrant to purchase shares of the registrants common stock issued to William P. Murphy, Jr., M.D. |
|||||
10.16(4) |
Material Supply Agreement, dated May 10, 2007, by and between the registrant and Biosense Webster |
|||||
10.17(5) |
Warrant to purchase shares of the registrants common stock issued to BlueCrest Capital Finance, L.P. |
|||||
10.18(6) |
Loan Guarantee, Payment and Security Agreement, dated as of September 12, 2007, by and between the registrant and Samuel S. Ahn,
M.D. |
|||||
10.19(6) |
Loan Guarantee, Payment and Security Agreement, dated as of September 12, 2007, by and between the registrant and Dan
Marino |
|||||
10.21(6) |
Loan Guarantee, Payment and Security Agreement, dated as of September 19, 2007, by and between the registrant and Jason
Taylor |
|||||
10.22(7) |
Loan Guarantee, Payment and Security Agreement, dated as of October 10, 2007, by and between the registrant and Howard and Brenda
Leonhardt |
|||||
10.24(7) |
Second Amendment to Loan Guarantee, Payment and Security Agreement, dated as of October 10, 2007, by and between the registrant and
Howard and Brenda Leonhardt |
|||||
10.25(7) |
Second Amendment to Loan Guarantee, Payment and Security Agreement, dated as of October 10, 2007, by and between the registrant and
William P. Murphy, Jr., M.D. |
|||||
10.26(10) |
Bioheart, Inc. Omnibus Equity Compensation Plan |
|||||
10.28(11) |
Form of Registration Rights Agreement for October 2008 Private Placement |
|||||
10.29(19) |
10% Convertible Promissory Note Due July 23, 2010, in the amount of $20,000, payable to Dana Smith |
|||||
10.31(19) |
Registration Rights Agreement, dated July 23, 2009 |
|||||
10.32(19) |
Subordination Agreement, dated July 23, 2009 |
|||||
10.33(19) |
Note Purchase Agreement, dated July 23, 2009 |
|||||
10.34(19) |
Closing Confirmation of Conversion Election, dated July 23, 2009 |
|||||
10.35**(20) |
Amended and Restated 1999 Directors and Consultants Stock Option Plan |
|||||
10.36(21) |
Preliminary Commitment Letter with Seaside National Bank and Trust, dated September 30, 2010. |
|||||
10.37(22) |
Loan Agreement with Seaside National Bank and Trust, dated October 25, 2010. |
|||||
10.38(22) |
Promissory Note with Seaside National Bank and Trust, dated October 25, 2010. |
|||||
10.39(22) |
Amended and Restated Loan and Security Agreement with BlueCrest Venture Finance Master Fund Limited, dated October 25,
2010. |
|||||
10.40(23) |
Form of Subscription Agreement, executed November 30, 2010. |
|||||
10.41(23) |
Form of Common Stock Purchase Warrant, issued November 30, 2010. |
|||||
10.42(23) |
Form of Registration Rights Agreement, dated November 30, 2010. |
|||||
10.43(24) |
Unsecured Convertible Promissory Note for $25,000, with Magna Group, LLC, dated January 3, 2011. |
|||||
10.44(24) |
Promissory Note for $139,728.82 with Magna Group, LLC, dated January 3, 2011. |
|||||
10.45(24) |
Securities Purchase Agreement with Magna Group, LLC, dated January 3, 2011. |
|||||
10.46(24) |
Subordination Agreement, dated January 3, 2011. |
Exhibit No. |
Exhibit Description | |||||
---|---|---|---|---|---|---|
10.47(24) |
Notice of Conversion Election, dated January 3, 2011. |
|||||
10.48(25) |
Unsecured Convertible Promissory Note for $34,750, with Magna Group, LLC, dated May 16, 2011. |
|||||
10.49(25) |
Promissory Note for $139,728.82 with Magna Group, LLC, dated May 16, 2011. |
|||||
10.50(25) |
Securities Purchase Agreement with Magna Group, LLC, dated May 16, 2011. |
|||||
10.51(25) |
Subordination Agreement, dated May 16, 2011. |
|||||
10.52(26) |
Promissory Note for $139,728.82 with Lotus Funding Group, LLC, dated June 15, 2011. |
|||||
10.53(26) |
Partial Assignment and Modification Agreement, dated June 15, 2011. |
|||||
10.54(26) |
Subordination Agreement, dated June 15, 2011. |
|||||
10.55(27) |
Promissory Note for $140,380.21 with Greystone Capital Partners, dated July 8, 2011. |
|||||
10.56(27) |
Partial Assignment and Modification Agreement, dated July 8, 2011. |
|||||
10.57 (28) |
Subordination Agreement, dated July 8, 2011. |
|||||
10.58 (29) |
Promissory Note for $139,728.82 with Greystone Capital Partners, dated August 1, 2011. |
|||||
10.59 (29) |
Partial Assignment and Modification Agreement, dated August 1, 2011. |
|||||
10.60 (29) |
Subordination Agreement, dated August 1, 2011. |
|||||
10.61 (30) |
Promissory Note for $139,728.82 with Greystone Capital Partners, dated September 1, 2011. |
|||||
10.62 (30) |
Partial Assignment and Modification Agreement, dated September 1, 2011. |
|||||
10.63 (30) |
Subordination Agreement, dated September 1, 2011. |
|||||
10.64 (31) |
Standby Equity Distribution Agreement dated as of November 2, 2011. |
|||||
10.65 (31) |
Registration Rights Agreement dated as of November 2, 2011. |
|||||
10.66(32) |
Promissory Note for $139,728.82 with Greystone Capital Partners, dated January 3, 2012 |
|||||
10.67(32) |
Term Note B Promissory Note for $139,728.82 with Greystone Capital Partners, dated January 3, 2012 |
|||||
10.68(32) |
Unsecured Convertible Promissory Note for $63,000, with Asher Enterprises, Inc. dated April 2, 2012 |
|||||
10.69(32) |
Unsecured Convertible Promissory Note for $125,000, with IBC Funds LLC., dated January 9, 2013 |
|||||
10.70(32) |
Unsecured Convertible Promissory Note for $37,500, with Asher Enterprises, Inc. dated February 20, 2013 |
|||||
10.71(32) |
Unsecured Convertible Promissory Note for $42,500, with Asher Enterprises, Inc. dated January 9, 2013 |
|||||
10.80(33) |
2013 Bioheart, Inc. Omnibus Equity Compensation Plan |
Exhibit No. |
Exhibit Description | |||||
---|---|---|---|---|---|---|
10.81* |
Limited Waiver and Forbearance Agreement and Amendment to Limited Waiver and Forbearance Agreement dated October 1, 2012 and
September 17, 2014, respectively. |
|||||
10.82(37) |
Securities Purchase Agreement, dated as of October 7, 2014, by and between Magna Holdings I, LLC and Bioheart,
Inc. |
|||||
10.83(37) |
Registration Rights Agreement, dated as of October 7, 2014, by and between Magna Holdings I, LLC and Bioheart,
Inc. |
|||||
10.84(38) |
Common Stock Purchase Agreement, dated as of October 23, 2014, by and between Magna Equities II, LLC and Bioheart,
Inc. |
|||||
10.85 (38) |
Registration Rights Agreement, dated as of October 23, 2014, by and between Magna Equities II, LLC and Bioheart,
Inc. |
|||||
14.1(2) |
Code of Ethics for Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer and persons performing similar
functions |
|||||
14.2(2) |
Code of Business Conduct and Ethics |
|||||
31.1* |
Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002 |
|||||
32.1* |
Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002 |
* |
Filed herewith |
101.INS |
XBRL Instance Document |
|||||
101.SCH |
XBRL Taxonomy Extension Schema Document |
|||||
101.CAL |
XBRL Taxonomy Calculation Linkbase Document |
|||||
101.LAB |
XBRL Taxonomy Labels Linkbase Document |
|||||
101.PRE |
XBRL Taxonomy Presentation Linkbase Document |
|||||
101.DEF |
XBRL Definition Linkbase Document |
(1)
|
Incorporated by reference to the Companys Form S-1 filed with the Securities and Exchange Commission (the SEC) on February 13, 2007. |
(2)
|
Incorporated by reference to Amendment No. 1 to the Companys Form S-1 filed with the SEC on June 5, 2007. |
(3)
|
Incorporated by reference to Amendment No. 2 to the Companys Form S-1 filed with the SEC on July 12, 2007. |
(4)
|
Incorporated by reference to Amendment No. 3 to the Companys Form S-1 filed with the SEC on August 9, 2007. |
(5)
|
Incorporated by reference to Amendment No. 4 to the Companys Form S-1 filed with the SEC on September 6, 2007. |
(6)
|
Incorporated by reference to Amendment No. 5 to the Companys Form S-1 filed with the SEC on October 1, 2007. |
(7)
|
Incorporated by reference to Post-effective Amendment No. 1 to the Companys Form S-1 filed with the SEC on October 11, 2007. |
(8)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on July 3, 2008. |
(9)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on August 8, 2008. |
(10)
|
Incorporated by reference to the Companys Quarterly Report on Form 10-Q filed with the SEC on August 14, 2008. |
(11)
|
Incorporated by reference to the Companys Quarterly Report on Form 10-Q filed with the SEC on November 14, 2008. |
(12)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on February 3, 2009. |
(13)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on April 8, 2009. |
(14)
|
Incorporated by reference to the Companys Annual Report on Form 10-K filed with the SEC on April 15, 2009. |
(15)
|
Incorporated by reference to the Companys Annual Report on Form 10-K/A filed with the SEC on April 30, 2009. |
(16)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on May 18, 2009. |
(17)
|
Incorporated by reference to the Companys Quarterly Report on Form 10-Q filed with the SEC on May 20, 2009. |
(18)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on July 9, 2009. |
(19)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on August 3, 2009. |
(20)
|
Incorporated by reference to Exhibit 4.6 to the Companys Post-Effective Amendment to Registration Statement on Form S-8/A, filed with the SEC on June 2, 2010. |
(21)
|
Incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed with the SEC on October 6, 2010. |
(22)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on October 29, 2010. |
(23)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on December 6, 2010. |
(24)
|
Incorporated by reference to the Companys Current Report on Form 8-K filed with the SEC on January 12, 2011. |
(25)
|
Incorporated by reference to the Company Current Report on Form 8-K filed with the SEC on May 25, 2011 |
(26)
|
Incorporated by reference to the Company Current Report on Form 8-K filed with the SEC on June 21, 2011 |
(27)
|
Incorporated by reference to the Companys Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 15. 2011 |
(28)
|
Incorporated by reference to the Companys Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 2011 |
(29)
|
Incorporated by reference to the Company Current Report on Form 8-K filed with the SEC on January 13, 2012 |
(30)
|
Incorporated by reference to the Company Current Report on Form 8-K filed with the SEC on January 30, 2012 |
(31)
|
Incorporated by reference to the Company Registration Statement on Form S-1/A filed with the SEC on February 8, 2012 |
(32)
|
Incorporated by reference to the Company Annual Report on Form 10-K filed with the SEC on March 29, 2013 |
(33)
|
Incorporated by reference to the Company Quarterly Report on Form 10-Q filed with the SEC on May 9, 2013 |
(34)
|
Incorporated by reference to the Company Current Report on Form Pre-14C filed with the SEC on December 18, 2012 |
(35)
|
Incorporated by reference to the Company Current Report on Form 8-K filed with the SEC on December 31, 2013 |
(36)
|
Incorporated by reference to the Company Information Statement on Form 14C filed with the SEC on October 10, 2014. |
(37)
|
Incorporated by reference to the Company Current Report on Form 8-K filed with the SEC on October 24, 2014 |
Exhibit No. |
Exhibit Description |
|||||
---|---|---|---|---|---|---|
31.1* |
Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002 |
|||||
32.1* |
Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002 |
|||||
101.INS |
XBRL Instance Document |
|||||
101.SCH |
XBRL Taxonomy Extension Schema Document |
|||||
101.CAL |
XBRL Taxonomy Calculation Linkbase Document |
|||||
101.LAB |
XBRL Taxonomy Labels Linkbase Document |
|||||
101.PRE |
XBRL Taxonomy Presentation Linkbase Document |
|||||
101.DEF |
XBRL Definition Linkbase Document |
Bioheart, Inc. |
||||||||||
Date: November 06, 2014 |
By: |
/s/Mike Tomas |
||||||||
Mike Tomas Chief Executive Officer & President and Principal Financial and Accounting Officer |
LIMITED WAIVER AND FORBEARANCE AGREEMENT
THIS LIMITED WAIVER AND FORBEARANCE AGREEMENT (the Agreement), is dated as of October 1, 2012 (the Effective Date), by and between BioHeart, Inc., a corporation organized under the laws of Florida (the BioHeart), and NorthStar Biotech Group, LLC, a Florida limited liability company (NorthStar).
WHEREAS, BioHeart is indebted to NorthStar, as successor to Blue Crest Capital Finance, L.P. (Blue Crest) under a Loan and Security Agreement dated May 30, 2007(the Loan Agreement), which is evidenced by a promissory note dated June 1, 2007 from BioHeart to Blue Crest in the original principal amount of $5,000,000 (the Note); and
WHEREAS, the obligations evidenced by the Note are secured by, among other things, a lien in favor of Blue Crest on the Collateral as defined in Paragraph 5.1 of the Loan Agreement(hereinafter, the Loan Agreement, Note and the Security Interest shall collectively be referred to herein as the Loan Documents ); and
WHEREAS, the Note requires that BioHeart make payments of principal and interest to Blue Crest on or before the first (1st) day of each calendar month beginning on first day of the first month following execution of the Loan Documents and ending on thirtysix month anniversary thereof (the Maturity Date ); and
WHEREAS, commencing on or about February 1, 2012, BioHeart failed to make required monthly payments of principal and interest to Blue Crest under the Note, and instead made payments of interest only to Blue Crest from and after such date; and
WHEREAS, on or about February 29, 2012, Blue Crest sold, assigned and transferred to NorthStar its right, title and interest under the Loan Documents (the Loan Transfer Date ), whereby NorthStar became the payee and holder of Blue Crest's right, title and interest in the Loan Documents and successor to Blue Crest's interests thereunder; and
WHEREAS, following transfer of the Loan Documents, BioHeart and NorthStar have agreed to a restructuring of BioHeart's obligations to NorthStar thereunder on the terms set-forth herein under which, among other things, NorthStar will forebear from exercising its rights and remedies under the Loan Documents, and will agree to receive certain shares of stock in BioHeart in lieu of cash payments under the Loan Documents.
NOW, THEREFORE, in consideration of the promises and the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, BioHeart and NorthStar agree as follows:
1
ARTICLE I.
RECAPITALIZATION/FOREBEARANCE CONSIDERATION
Section 1.1 Recapitalization of Defaulted Payments. On the Effective Date, all sums owed by BioHeart to NorthStar under the Loan Documents for, among other things, principal, interest, late charges, default interest, penalties, professional fees, shall be added to the principal balance of the Note and shall be recapitalized as the new principal balance owed thereunder (the New Loan Balance ). The maturity date of the Note shall be extended perpetually, and the obligations evidenced by the Note shall be deemed to have been paid in full when the value of the consideration provided to NorthStar by BioHeart equals or exceeds the New Loan Balance and all accrued and unpaid interest, costs and expenses (including, among others, legal fees) of any sort owed at the requested pay-off date (the Accrued Expenses ). For purposes of clarity, the New Loan Balance may be retired and paid in full when requested by BioHeart in writing, provided that the value of all consideration paid or provided by BioHeart to NorthStar in cash or stock, shall equal or exceed the New Loan Balance and all Accrued Expenses. If a dispute exists as to the value of consideration provided by BioHeart to NorthStar (for purposes of retirement of the New Loan Balance and the Accrued Expenses), the dispute shall be resolved with the assistance of an investment banking firm or appraiser agreed to by and among the parties. If an agreement on the name/identity of an investment banker/appraiser cannot be reached, one shall be appointed by the American Arbitration Association (see Dispute section below).
Section 1.2 Consideration in Lieu of Payments. Commencing on the Effective Date, the Loan Documents shall be modified to reflect that BioHeart is relieved of making further payments of cash or cash equivalents to NorthStar thereunder. Instead, NorthStar shall receive the following consideration in lieu of repayment of the obligations evidenced by the Loan Documents:
(a)
Unrestricted Common and Preferred Stock. On the Effective Date, BioHeart shall convert the sum of two hundred and ten thousand dollars ($210,000) from the Loan Documents, without any additional consideration, in exchange for the issuance to NorthStar of of 10,000,000 shares of common stock, and 5,000,000 shares of preferred stock, at a price of $0.014 per share, such stock, based on the age of the debt and other factors pursuant to Rule 144, shall be issued without the restrictive legend. Consequently, following this securities exchange, the New Loan Balance shall be reduced by two hundred and ten thousand dollars ($210,000) . Such shares shall not be subject to dilution.
(b)
Unrestricted Preferred Stock. NorthStar shall receive a distribution of additional, preferred shares in BioHeart equal in lieu of payment in cash of accrued and unpaid interest on the New Loan Balance on each six (6) month anniversary of the Effective Date, which shall be payable in shares of preferred stock in BioHeart. Such shares shall be issued without the restrictive legend provided that all factors underlying Rule 144 are satisfied. As specified in Paragraph 1.4, interest shall accrue at the rate of twelve and eight-five hundreds of one percent (12.85%) per year on the principal balance owed hereunder. Such shares shall not be subject to dilution.
2
(c)
New Lien on Assets. On the Effective Date, BioHeart shall execute in favor of NorthStar a revised security agreement granting NorthStar a lien on the following assets of BioHeart, which do not presently serve as security under the Loan Agreements: all patents, patent applications, trademarks, service marks, copyrights and intellectual property rights of any nature, as well as the results of all clinical trials, know-how for preparing Myoblasts, old and new clinical data, existing approved trials, all right and title to Myoblasts, clinical trial protocols and other rights and property interests as may be agreed to by the parties.
(d)
License Rights. On the Effective Date, BioHeart shall provide NorthStar with a perpetual, license on products set-forth in Exhibit A for resale, relicensing and commercialization outside of the United States. The license shall be set-forth in a written agreement between NorthStar and BioHeart, the terms of which shall be subject to negotiations (the NorthStar License Agreement ). The license shall include, without limitation, the products in Exhibit A and all intellectual property rights owned by BioHeart including, without limitation, patents, copyrights, trademarks, service marks and all other forms of intellectual property, and subject to industry standard terms and conditions. Once BioHeart raises sufficient monies to conduct the BioHeart Phase II/III FDA-Approved Trials for MARVEL, NorthStar shall receive a perpetual, license on products set-forth in Exhibit A for resale, relicensing and commercialization within the United States; and
(e)
Unrestricted Warrants for Additional Shares. On the Effective Date, BioHeart shall issue NorthStar the right to receive 15,000,000 warrants for unrestricted common stock in BioHeart at a price of $0.014 per share. Such new shares shall not be subject to dilution.
Section 1.3 Royalty. In connection with the transactions described in Paragraphs 1.1 and 1.2 above, and under the terms of the NorthStar License Agreement, NorthStar shall pay BioHeart a royalty of up to eight (8%) percent on the revenues generated from the resale, relicensing and/or commercialization of the Products identified in Exhibit A to the NorthStar License Agreement. After the New Loan Balance is paid in full, NorthStar shall pay BioHeart the following royalties:
GROSS REVENUES PER YEAR |
ROYALTY |
Up to $1,000,000 |
8% |
Between $1,000,001 and $2,000,000 |
7% |
Between $2,000,001 and $3,000,000 |
6% |
Between $3,000,001 and $4,000,000 |
5% |
In excess of $4,000,000 |
4% |
3
Section 1.4 Interest Accrual. Commencing on the Effective Date, interest on the New Loan Balance shall accrue at the rate of twelve and eighty-five hundreds of one percent (12.85%) per year on the principal balance owed hereunder.
ARTICLE II.
AGREEMENT TO WAIVE AND FORBEAR
Section 2.1 Waiver.
(a)
In connection with the consideration provided by BioHeart to NorthStar hereunder, NorthStar shall waive, from the Effective Date through to the earlier of termination or expiration of the Agreement, or satisfaction of the obligations evidenced thereunder (the Agreement End Date ), any Default or Event of Default that has arisen under the Loan Documents prior to the Effective Date hereof (the Waived Matters ). >Notwithstanding the foregoing, Waived Matters shall not include Defaults or Events of Default that occur subsequent to the Effective Date.
Section 2.2 Forbearance.
(a)
In exchange for the payments made, and consideration provided under this Agreement, NorthStar shall forbear from taking or exercising any Enforcement Action in connection with the Waived Matters (the Forbearance ). For purposes of this Agreement, the term Enforcement Action means any and all action in a court of competent jurisdiction or otherwise to enforce NorthStar's rights under the Loan Documents, Florida law or otherwise against BioHeart, and that may be subject of attachment, garnishment or seizure or other remedy by NorthStar under the Loan Documents.
(b)
BioHeart agrees that all consideration to be provided by it under Article I must be provided by it and received by NorthStar on a timely basis. Failure to timely provide any such consideration on a timely basis shall constitute a breach of this Agreement. In such event, upon thirty (30) days' written notice to BioHeart, NorthStar may terminate the Agreement and the waivers and forbearances hereunder, unless BioHeart cures the breach within such thirty (30) day period.
(c)
In the event that this Agreement is breached, NorthStar reserves the exclusive right to accept or reject, in its sole discretion, any tendered cure of such breach if the cure is less than the full amount owed to it under the terms of this Agreement, without prejudice of its rights.
(d)
BioHeart and NorthStar agree that each and every payment, transfer, grant, pledge or other tender of consideration hereunder shall be applied as stated, and shall not be returned by NorthStar in the event of BioHeart's breach of this Agreement.
4
(e)
Acceptance of funds under this Agreement by NorthStar shall not constitute a waiver of any rights or defaults under the Loan Documents. BioHeart agrees that, in the event of a breach of this Agreement, the debt owed to NorthStar under the Loan Documents has been properly accelerated, and is due and owing in full in the amount stated herein.
Section 2.3 Further Action by BioHeart. As soon as practicable after the Effective Date, BioHeart shall take all such further action, to facilitate or further effectuate the waiver of the Waived Matters and the Forbearance as requested by NorthStar and as required to fulfill its obligations hereunder.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF BIOHEART
BioHeart represents and warrants to NorthStar as follows:
Section 3.1 Due Authorization and Enforceability. This Agreement has been duly executed and delivered by BioHeart and, assuming due authorization, execution and delivery by NorthStar, is a valid and binding obligation of BioHeart, enforceable against BioHeart in accordance with its terms, subject as to enforceability to general principles of equity and to bankruptcy, insolvency, moratorium and other similar laws affecting the enforcement of creditors' rights generally.
Section 3.2 Non-Contravention. The execution and delivery by BioHeart of this Agreement does not and will not, with or without the giving of notice or the lapse of time, or both (i) result in any violation of any terms of agreements to which BioHeart is bound; (ii) conflict with or result in a breach by BioHeart of the terms or provisions of, or constitute a default under, any mortgage, deed of trust or other agreement or instrument to which he is a party or by which he or any of its properties or assets is or are bound or affected; or (iii) violate or contravene any applicable law, rule or regulation or any decree, judgment or order of any court or Governmental Body having jurisdiction over BioHeart or any of its properties or assets, except for such conflicts, breaches, defaults or violations as would not have a material adverse effect on the financial condition of BioHeart, taken as a whole and, if anything, improves the financial condition of BioHeart. For purposes of this Agreement, the term Governmental Body means any government or political subdivision thereof, whether federal, state, local or foreign, or any agency or instrumentality of any such government or political subdivision thereof, or any federal or state court or arbitrator.
Section 3.3 Non-Assignment. BioHeart has not assigned its rights, or delegated its duties, under the Loan Documents to any other person or entity.
5
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF NORTHSTAR
NorthStar, solely on its own behalf, represents and warrants to BioHeart as follows:
Section 4.1 Ownership. NorthStar is the beneficial owner and holder of the Loan Documents, >and has not assigned its right, title or interest therein to another person or entity.
Section 4.2 Terms of Agreement. The terms of this Agreement were the result of negotiations between NorthStar and BioHeart, and each was given the opportunity to review and comment upon the proposed terms of this Agreement with sophisticated counsel of its own choosing.
ARTICLE V.
CONDITIONS PRECEDENT TO EFFECTIVENESS
Section 5.1 This Agreement shall become effective on the date on which the following conditions precedent shall have been satisfied or waived, as determined by NorthStar:
(a)
NorthStar shall have received this Agreement, duly executed and delivered by BioHeart.
(b)
BioHeart shall have (i) made the transfers and grants required of it to NorthStar on or prior to the Effective Date as specified in Article 1.
ARTICLE VI.
MISCELLANEOUS
Section 6.1 Costs, Expenses and Taxes. BioHeart shall pay NorthStar's fees, costs and expenses (including, among others, legal fees) incurred in connection with the preparation, execution and delivery of this Agreement. BioHeart shall also pay any and all stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement.
Section 6.2 Survival of Representations. The representations, warranties, covenants and agreements of BioHeart and NorthStar contained in this Agreement shall survive the consummation and termination of this Agreement.
Section 6.3 Prior Agreements. This Agreement and the other agreements contemplated hereby constitute the entire agreement between the parties concerning the subject matter hereof, and supersedes any prior representations, understandings or agreements. There are no representations, warranties, agreements, conditions or covenants, of any nature whatsoever (whether express or implied, written or oral) between the parties hereto with respect to such subject matter except as expressly set forth herein.
6
Section 6.4 Severability. The invalidity or unenforceability of any provision hereof shall in no >way affect the validity or enforceability of any other provision or the validity and enforceability of this Agreement in any other jurisdiction.
Section 6.5 Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Florida, without giving effect to applicable choice of law principles to the extent that the application of the laws of another jurisdiction would result thereby. Lxclusive venue for any dispute resolution proceeding shall be Broward County, Florida.
Section 6.6 Waiver of Jury Trial. Each of the parties hereto irrevocably and unconditionally waives trial by jury in any legal action or proceeding relating to this Agreement or the transactions contemplated hereby and for any counterclaim therein.
Section 6.7 Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of, or affect the interpretation of, this Agreement.
Section 6.8 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and each of the parties hereto may execute this Agreement by signing any such counterpart. A facsimile or electronic mail transmission of this Agreement bearing a signature on behalf of a party hereto shall be legal and binding on such party.
Section 6.9 Assignment; Binding Effect. BioHeart shall not convey, assign or otherwise transfer any of its rights or obligations under this Agreement without the express written consent of NorthStar. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement will limit or otherwise restrict the ability of NorthStar to transfer the Loan Documents to another party.
Section 6.10 Waiver; Remedies. No delay on the part of NorthStar in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of NorthStar of any right, power or privilege under this Agreement, operate as a waiver of any other right, power or privilege of such party under this Agreement, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege under this Agreement.
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Section 6.11 Atnendment. This Agreement may be modified or amended, and any termhereof waived, only by written agreement of all of the parties to this Agreement,
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, havecaused this Agreement to be executed by their respective duly authorized officers, as of the datefirst above written.
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BIOHEART, INC. |
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AMENDMENT TO
LIMITED WAIVER AND FORBEARANCE AGREEMENT
This amendment to the Limited Waiver And Forbearance Agreement, as amended, (Amendment ) is made by and between NorthStar Biotech Group, LLC (NorthStar ) and Bioheart, Inc. (BioHeart and collectively with Northstar, the Parties ).
WHEREAS, the NorthStar and BioHeart entered into a Limited Waiver and Forbearance Agreement, on October 1, 2012, as subsequently modified (the Agreement ); and
WHEREAS, Northstar and Bioheart now desire to further amend the Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter set forth, the Parties hereto hereby agree as follows:
1.
Section 1.2(d) of the Agreement is modified to read as follows:
License Rights.
On the Effective Date, BioHeart shall provide NorthStar with a
perpetual license on products set-forth in Exhibit A for resale, relicensing and commercialization outside the United States. The license shall be set-forth in a written agreement between NorthStar and BioHeart, the terms of which shall be subject to negotiations (the NorthStar license Agreement ). The license shall include, without limitation, the products in Exhibit A and all intellectual property rights owned by BioHeart including, without limitation, patents, copyrights, trademarks, service marks and all other forms of intellectual property, and subject to industry standard terms and conditions. Once NorthStar provides a direct investment in the equity securities of Bioheart such that the aggregate capital in such investment provides sufficient capital for the benefit of BioHeart in order to permit BioHeart to satisfy the costs associated with conducting the BioHeart Phase II/III FDA- Approved Trials for MARVEL: NorthStar shall receive a perpetual license on products set-forth in Exhibit A for resale, relicensing and commercialization within the United States; provided, however, that BioHeart may, in its sole discretion, choose to decline such investment and retain the license. Bioheart agrees and acknowledges that if BioHeart chooses to decline the investment, and a vote of the shareholders and/or the Board of Directors of Bioheart is required, the affiliates of NorthStar shall recuse themselves from any vote.
2.
Miscellaneous. All capitalized terms used herein and not otherwise defined shall have the meanings assigned in the Agreement as amended. Except as modified herein, all covenants, terms and conditions of the Agreement as amended shall remain in full force and effect, which covenants, terms and conditions the parties hereby ratify and affirm. This Amendment may be executed in several counterparts, each one of which shall constitute an original and all collectively shall constitute but one instrument.
SIGNATURES ON FOLLOWING PAGE
1 | Page
Amendment To
Limited Waiver And Forbearance Agreement
by and between
NortbStar and BioHeart
IN WITNESS WHEREOF, the parties here cause this Amendment to be duly executed as of the date first above written.
Bioheart, Inc.
By:
Name: Mike Tomas
Title: Chief Executive Officer
Date: 09/17/14
NorthStar Biotech Group, LLC:
By:
Name: Charles A. Hart
Title: Managing Member
Date: 09/18/14
2 | Page
Amendment To
Limited Waiver And Forbearance Agreement
by and between
NortbStar and BioHeart
1. |
I have reviewed this report on Form 10-Q of Bioheart, Inc.; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. |
The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a. |
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b. |
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c. |
evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d. |
disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. |
The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a. |
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
b. |
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: November 06, 2014 |
/s/Mike Tomas |
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Name: |
Mike Tomas President and Chief Executive Officer Chief Financial Officer and Principal Accounting Officer |
(1) |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and |
(2) |
The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. |
Date: November 06, 2014 |
/s/Mike Tomas |
|||||||||
Name: |
Mike Tomas President and Chief Executive Officer Chief Financial Officer and Principal Accounting Officer |
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