ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into on
May 29, 2003 (the "Effective Date"), by and between NONLINEAR
MEDICINE, INC., a
Delaware corporation (and a wholly-owned subsidiary of Vicor
Technologies, Inc.,
a Delaware corporation ("Vicor")) ("Purchaser"), and ENHANCED
CARDIOLOGY, INC.,
a Texas corporation ("Seller").
RECITALS
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires
to
acquire from Seller, certain assets of Seller as specifically
documented in this
Agreement, on and subject to the terms and conditions contained in
this
Agreement; and
NOW, THEREFORE, in consideration of the mutual representations,
warranties
and agreements set forth herein, and for other good and valuable
consideration,
the sufficiency and receipt of which is hereby acknowledged by each
of the
parties, the parties hereto intending to be legally bound, hereby
covenant and
agree as follows:
ARTICLE 1
TERMS OF AGREEMENT.
1.1. Purchase and Sale of Assets. On the terms and subject to the
conditions set forth in this Agreement, Seller hereby sells to
Purchaser, and
Purchaser hereby purchases from Seller, the assets specifically
listed on
Exhibit "A" hereto (collectively, the "Assets").
1.2. No Other Assets Purchased. The Purchaser is not purchasing any
assets
from Seller except for the Assets.
1.3. No Assumption of Liabilities of Seller. Purchaser is not
assuming and
shall not become obligated or responsible for any of the
liabilities,
encumbrances, indebtedness or obligations of Seller as a result of
the execution
of this Agreement or the consummation of the transactions
contemplated herein.
ARTICLE 2
PURCHASE PRICE AND PAYMENT OF PURCHASE PRICE
2.1. Purchase Price. The total purchase price for the Assets is Two
Hundred
Fifty-two Thousand Dollars ($252,000). Seller acknowledges and
agrees that (a)
Purchaser has already paid $37,500 of this total purchase price to
Seller, and
(b) the remaining amount of the purchase price to be paid to Seller
is $214,500.
This remaining amount of the purchase price shall be paid as
follows:
$ 7,000: May 23, 2003
$ 5,500: June 12, 2003
$202,000: At Closing
2.2. Allocation of Purchase Price. The Purchase Price shall be
allocated
among the Assets in the manner set forth on Exhibit 2.2 attached
hereto and made
a part hereof. Purchaser and Seller hereby shall file all federal,
state and
local tax returns and reports in a manner consistent with such
allocation, and
that none of them will assert or maintain a position inconsistent
with the
foregoing in any administrative or judicial proceeding, including
any tax audit
or other tax proceeding.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as of the
Effective Date
as follows:
3.1. Organization. Seller is a corporation duly organized, validly
existing
and in good standing under the laws of the State of Texas. Seller
has all
corporate power and authority to own its property and to carry on
its operations
as now conducted. Seller has no stock or other equity interest in
any
corporation, firm or any other entity, and conducts all of its
business directly
and not through any association, joint venture, partnership or
other business
entity.
3.2. Corporate Action, Legal, Valid and Binding Agreement. All
corporate
action of Seller necessary to authorize the execution and delivery
of this
Agreement and the instruments to be executed and delivered pursuant
hereto and
to consummate the transactions contemplated hereby has been
properly taken, and
resolutions or written consents of the Board of Directors and the
shareholders
(if required) of Seller, certified by the President of Seller and
in form
reasonably satisfactory to counsel for Purchaser, shall be
delivered to
Purchaser at the Closing (as defined herein). This Agreement is a
legal, valid
and binding agreement of Seller enforceable against Seller in
accordance with
its terms.
3.3. Organization. Neither the execution, delivery or performance
of this
Agreement nor the consummation of the transactions contemplated
hereby is
prohibited by, is a violation of, is in conflict with, constitutes
a default
under (whether such default would occur with the passage of time,
the giving of
notice, or both), or requires Seller to obtain any consent,
authorization or
approval or registration under, or gives any person the right to
accelerate the
performance of any obligation under (a) any term or provision of
the Articles of
Incorporation or other governing documents of Seller, (b) any
contract,
agreement or commitment to which Seller is bound, (c) any
agreement,
understanding or commitment relating to any bank or other
institutional loans or
indebtedness of Seller, (d) any judgment, decree, order, regulation
or rule of
any court or governmental authority, or (e) any statute, law or
ordinance
applicable to Seller.
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3.4. Title to and Condition of Assets. Seller is the sole owner of
all of
the Assets, and no other entity or individual has any actual,
existing or
potential claim (legal or otherwise) regarding the ownership of any
of the
Assets. There is no basis for any such claim to arise in the
future. Seller
hereby delivers to Purchaser good and marketable title to all of
the Assets. All
of the Assets are free and clear of any agreements or
understandings with
respect to the use or possession thereof or any rights thereto, and
are free of
all liens, mortgages, pledges, encumbrances, leases, security
interests,
conditional sales agreements, or charges of any kind or character
(collectively,
"Encumbrances"), and no basis exists for the imposition of any such
Encumbrance
in the future. None of the Assets is on consignment with any third
party.
3.5. Litigation. There is no action, suit, investigation or other
proceeding pending or contemplated or threatened against or
involving the Assets
before any court or any administrative or other governmental or
regulatory
agency or body or which could affect or involve the Assets, and
Seller knows of
no valid basis for any such action, suit, investigation or other
proceeding. No
unsatisfied judgment, order, writ, injunction, decree or assessment
or other
command of any court or any federal, state, local, foreign or other
governmental
department, commission, board, bureau, agency or instrumentality
has been
entered against or served upon Seller or against the Assets. There
is no action
or proceeding pending or threatened which questions or challenges
the validity
of this Agreement or any of the transactions contemplated by this
Agreement or
otherwise seeks to prevent or have the effect of preventing the
consummation of
the transactions contemplated by this Agreement.
3.6. Taxes. Seller has filed or caused to be filed all federal,
state,
municipal and other tax returns and reports required to be filed
and has paid
all taxes when due relative to the Assets and its business
operations. There are
no liens or charges on the Assets or the Seller's business
resulting from
Seller's failure to file any such tax returns or reports or to pay
any such tax
and there are no unpaid taxes which are or could become a lien on
the Assets.
All funds required to be withheld by Seller from employees for
income taxes,
social security and unemployment insurance taxes have been
collected or
withheld, and either paid to the respective governmental agencies
or set aside
in accounts for such purpose.
3.7. Intellectual Property Representations. None of the Assets
infringes
upon, interferes with, or otherwise comes into conflict with any
intellectual
property rights of any third party, and Seller's use of the Assets
has not at
any time infringed upon interfered with or otherwise come into
conflict with the
intellectual property rights of any third party. Seller has not
received any
written or oral notices of any such infringement, interference or
conflict from
any third party (including, without limitation, any claim or demand
that Seller
must license or refrain from using any intangible property rights
of any third
party), and Seller is not aware (after due investigation by the
executive
officers of Seller) of any basis for the assertion of the existence
of any such
infringement, interference or conflict by any third party. None of
the Assets is
subject to any outstanding judgment, order, decree, ruling or
charge of any
kind. No legal or administrative proceedings involving the Assets
are currently
pending or threatened which challenge the use, validity or legality
of any of
the Assets and there is no basis upon which any such proceedings
could arise.
None of the Assets is subject to any license or any similar
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rights, and there is no basis upon which any third party can (now
or in the
future) assert the existence of any such right.
3.8. General Representation and Warranty. Except as otherwise
specifically
disclosed in this Agreement or any exhibit or schedule hereto,
there are no
facts or conditions which are materially adverse to the Assets.
None of the
representations and warranties of Seller made in this Agreement
contains any
untrue statement of material fact or omits to state any material
fact necessary
in order to make any such representation or warranty not
misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants as of the Effective Date to
Seller as
follows:
4.1. Organization. Purchaser is a corporation duly organized,
validly
existing and in good standing under the laws of the State of
Delaware.
4.2. Corporate Action; Legal, Valid and Binding Agreement. All
actions of
Purchaser necessary to authorize the execu
