ASSET PURCHASE AND INTELLECTUAL

ASSET PURCHASE AND INTELLECTUAL

PROPERTY ASSIGNMENT AGREEMENT

This Asset Purchase and Assignment Agreement (this “ Agreement ”) dated as of July 10, 2009 (the “ Effective Date ”) is by and between MyoCardioCare, Inc., a Delaware corporation (“ MCC ”), and Biophan Technologies, Inc., a Nevada corporation (“BIOPHAN”).  MCC and BIOPHAN are individually a “ Party ”, and together are the “ Parties ,” to this Agreement.

WHEREAS, MCC has determined that it is in its business interest to acquire certain Assets and Intellectual Property of BIOPHAN and BIOPHAN has determined it is in its business interest to sell such Assets and Intellectual Property to MCC.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.           DEFINITIONS.  As used herein, the following terms will have the following meanings:

“ Action ” means any Claim, action, cause of action or suit (whether in contract or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal), controversy, assessment, arbitration, investigation, hearing, charge, complaint, demand, patent interference, opposition, Third Party requested patent re-examination, notice or proceeding, in each case, to, from, by or before any Governmental Authority.

“ Affiliate ” of a specified person (natural or juridical) means a person that now or hereafter directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.  “Control” shall mean ownership of more than 50% of the shares of stock entitled to vote for the election of directors in the case of a corporation, and more than 50% of the voting power in the case of a business entity other than a corporation.

“ Ancillary Agreements ” means any agreements, certificates, instruments and documents executed and delivered pursuant to any of Sections 3.3 of this Agreement.

“ Assigned Assets ” means the Tangible Assets, Tangible Materials, Books and Records, and Assigned Intellectual Property Rights.

“ Assigned Intellectual Property Rights ” means all Intellectual Property of BIOPHAN  as of the Closing date  which are necessary to practice the Technology, including, but not limited to, the Assigned Patent Rights.

“ Assigned Patent Rights ” means (a) the Patent Rights related to the patents set forth on Schedule 1 hereto; and (b) all counterpart Patent Rights of any of the Patent Rights in subpart (a).

“ BIOPHAN ” is defined in the Preamble to this Agreement.

“ BIOPHAN Disclosure Schedule ” is defined in the Preamble to Article 4 of this Agreement.

" BIOPHAN Field " means any technology related to the direct mechanical ventricular actuation technology for mechanical support of the heart.

“ Books and Records ” means all records and lists of BIOPHAN related solely to the Assigned Assets including: all analysis reports, marketing reports and creative material pertaining to the Assigned Assets, all records relating to past or present customers, suppliers or personnel of BIOPHAN (including potential customers lists, mailing address lists, e-mail address lists, recipient lists, correspondence with potential customers, supply lists and records of purchases from and correspondence with suppliers and any other written or electronic identifiable data relating to past or present customers or suppliers of BIOPHAN with regard to the Assigned Assets which has been created by BIOPHAN or its representatives, agents or employees), all records relating to all product, business and marketing plans of BIOPHAN as they related to the Technology.

“ Business Day ” means any weekday other than a weekday on which banks located in Rochester, New York are authorized or required to be closed.

“ Claim ” means any assertion of right whatsoever (including those arising from debts, bonds, promises, damages, equitable claims and judgments), whether liquidated or unliquidated, known or unknown, fixed or contingent, direct or indirect, or imputed.

“ Closing ” is defined in Section 3.3 (Closing Time and Place).

“ Code ” is defined in Section 3.1 (Payments).

“ Confidential Information ” means (i) the non-public information in this Agreement, and the Ancillary Agreements; (ii) the details of the discussions and drafts leading up to the execution of this Agreement or the Ancillary Agreements; and (iii) any information or compilation of information of one of the Parties hereto (the “ Disclosing Party ”) which becomes known to another Party (the “ Receiving Party ”) that is not generally known to the public, including trade secrets, whether disclosed before or after the date of this Agreement, excluding information which:

Information meeting the above definition shall be treated as Confidential Information regardless of its source, and all information identified as being “confidential” or “trade secret” or labeled with words of similar import shall be presumed to be Confidential Information.  Confidential Information includes information being held in confidence by a Disclosing Party for the benefit of a third party.

“ Consents ” is defined in Section 4.3 (Consents).

“ Contractual Obligation ” means, with respect to any Person, any legal, valid and binding contract, agreement, deed, note, debenture, warrant, option, mortgage, lease, license, commitment, promise, undertaking, arrangement or understanding, whether written or oral, or other document or instrument to which or by which such Person is a party or otherwise subject or bound or to which or by which any property, business, operation or right of such Person is subject or bound, in each case as amended or otherwise modified and in effect.

“ Disclosing Party ” is defined in “Confidential Information.”

“ Dispute ” means any dispute, controversy, Action, or other issue relating to or arising under or in connection with this Agreement or any of the Ancillary Agreements, their subject matter, or their formation, interpretation, performance or breach, including fraud in the inducement and the validity, scope and enforceability of the Agreement.

“ Effective Date ” is defined in the Preamble.

“ Encumbrance ” means any interest relating to or arising out any lien, license, covenant not to sue, option, pledge, security interest, mortgage, right of first offer or first refusal, buy/sell agreement and any other restriction or covenant with respect to, or condition governing the use, construction, transfer, receipt of income or exercise of any other attribute of legal or equitable ownership.

“ Exploit ” means make, have made, use, import, export, offer to sell, sell or otherwise dispose of.  “ Exploited ,” “ Exploitation ” and other variants or variations of the word “Exploit” shall have correlative meanings.

“ Field ” means use of Technology in or for any product or application.

“ Filings ” is defined in Section 4.3 (Consents).

 “ Governmental Authority ” means any United States federal, state or local or any foreign government, or political subdivision thereof, or any multinational governmental organization or authority or any governmental authority, agency or commission in each case entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, any court or tribunal (or any department, bureau or division thereof), or any arbitrator or arbitral body.

“ Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, ruling, determination or award entered by or with any Governmental Authority, but excluding any action or inaction in the course of the ex parte preparation or prosecution of any Patent Right and any order, writ, judgment, injunction, decree, stipulation, ruling, determination or award of general applicability.

“ Indemnified Party ” means a Person to whom indemnification is provided under this Agreement.

“ Indemnifying Party ” means a Person providing indemnification under this Agreement.

“ Intellectual Property ” means all forms of intellectual property in any jurisdiction and under any law, whether now or hereafter existing, including (a) inventions, discoveries, patent applications, patents (including letters patent, industrial designs, and inventor’s certificates), design registrations, invention disclosures, and applications to register industrial designs, and any and all rights to any of the foregoing anywhere in the world, including any provisionals, substitutions, extensions, supplementary patent certificates, reissues, re-exams, renewals, divisions, continuations, continuations in part, continued prosecution applications, and other similar filings or notices provided for under the laws of the United States or of any other country; and (b) trade secrets and other confidential or non-public technical information, including ideas, formulas, compositions, inventor’s notes, discoveries, improvements, concepts, know-how, manufacturing and development information, data resulting or derived from research activities, Inventions, invention disclosures, unpatented blue prints, drawings, specifications designs, plans, proposals and technical data.

“ Invention ” means any invention, discovery, know-how, trade secret, data, information, technology, process or concept, whether or not patented or patentable, and whether or not memorialized in writing.

 “ Instruments of Assignment ” means those documents and instruments necessary for Biophan to effect the sale, conveyance, assignment, transfer and delivery of the Acquired Assets to MCC or its designees, including assignment and assumption agreements, bills of sale and other documents of assignment and transfer, all in form and substance reasonably satisfactory to MCC, each in recordable form to the extent necessary to duly assign such rights to MCC.

“ Legal Requirement ” means any United States federal, state or local or foreign law, statute, standard, ordinance, code, rule, regulation, resolution or promulgation, or any Governmental Order, or any license, franchise, permit or similar right granted under any of the foregoing, or any similar provision having the force or effect of law.

“ Liability ” means, with respect to any Person, any liability or obligation of such Person whether known or unknown, whether asserted or unasserted, whether determined, determinable or otherwise, whether strict, absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether incurred or consequential, whether due or to become due and whether or not required under U.S. generally accepted accounting principles to be accrued on the financial statements of such Person.

“ Losses ” means all Actions, Claims, Liabilities, damages, judgments, amounts paid in settlement, assessments, Taxes, losses, fines, penalties, expenses, costs and fees (including reasonable attorneys’ fees), and amounts, costs and reasonable attorneys’ fees associated with seeking indemnification hereunder.

“ MCC ” is defined in the Preamble.

“ Organizational Documents ” means, with respect to any Person (other than an individual), (a) the certificate or articles of incorporation or organization and any joint venture, limited liability company, operating or partnership agreement, trust agreement and instrument and other similar documents adopted or filed in connection with the creation, formation or organization of such Person and (b) all by laws, voting, agreements and similar documents, instruments or agreements relating to the organization or governance of such Person, in each case as amended or supplemented.

“ Party ” and “ Parties ” are defined in the Preamble.

“ Patent Rights ” means (i) any and all U.S. and foreign:  (a) patents (including utility and design patents); (b) patent applications (including utility and design patent applications), including all provisional applications, substitutions, continuations, continuations-in-part, divisions, renewals, and all patents granted thereon; and (c) patents-of-addition, reissues, reexaminations and extensions or restorations by existing or future extension or restoration mechanisms, including supplementary protection certificates or the equivalent thereof, (d) patent rights obtained from Third Parties through an interference proceeding based upon any patent or application in (a)-(c),and (ii) any other form of government-issued right substantially equivalent to any of the foregoing now or hereafter recognized including, for example, statutory invention disclosures or the like.

“ Payment ” is defined in Section 3.1 (Payments).

 “ Person ” means any individual or corporation, association, partnership, limited liability company, joint venture, joint stock or other company, business trust, trust, organization, Governmental Authority or other entity of any kind.

 “ Receiving Party ” is defined in “Confidential Information.”

“ Representative ” means, with respect to any Person, any director, officer, employee, agent, consultant, advisor, partner, trustee or other representative of such Person, including legal counsel, accountants and financial advisors.

“ Tangible Assets ” means the assets set forth on Schedule 2.

“ Tangible Materials ” means documents, files (including electronic files), diagrams, drawings, plans, specifications, designs, schematics, records, reports, lab or research notebooks, drawings, flow charts, specifications, written descriptions, invention disclosures, source code, data, photographs of three-dimensional prototypes and models, or other written, graphic or tangible materials or embodiments (other than three-dimensional prototypes and models) relating to the Assigned Patents, and all correspondence and files relating to the prosecution of the Assigned Patents, in each case, within the possession, custody or control of BIOPHAN or its Affiliates.

“ Tax ” or “ Taxes ” means any and all federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, capital stock, franchise, profits, withholding, social security (or similar, including FICA), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind, including any interest, penalty or addition thereto, whether disputed or not.

“ Technology ” means any technology related to the direct mechanical ventricular actuation technology for mechanical support of the heart.

“ Third Party ” means any Person other than the Parties and their Affiliates.

“ Third Party Claim ” means any Claim by a Third Party with respect to any matter that may give rise to a Claim for indemnification under this Agreement.

2.1            Assigned Assets .  Effective as of the Closing, subject to the terms of this Agreement, BIOPHAN hereby sells, conveys, assigns and transfers to MCC all its interests in and to the Assigned Assets, together with the right to sue and collect for past infringement.  MCC accepts the Assigned Assets, provided , that MCC does not assume any liabilities or obligations of BIOPHAN related to the Assigned Assets except as set forth in this Agreement.

3.1            Payments .  MCC shall pay the following to BIOPHAN in exchange for the rights granted hereunder:

3.2            Method of Payment .  Payments of the Cash Consideration shall be made by wire transfer to an account designated by BIOPHAN.  The amounts payable hereunder shall be paid in United States dollars.

3.3            Closing Time and Place .  The Closing of the purchase and sale of the Assigned Assets and the transactions contemplated by the Ancillary Agreements (the “ Closing ”) shall take place within three (3) Business Days after all of the conditions to closing set forth in this Section 3.3 shall have been satisfied or waived by MCC in writing.  At the Closing, MCC shall make the Closing Payment.  Notwithstanding anything to the contrary herein, MCC’s obligation to proceed to the Closing shall be conditioned on the following:

3.4            Termination of Closing . The respective obligations of the Parties to consummate the Closing may be terminated and abandoned at any time at or before the Closing only as follows:

BIOPHAN represents and warrants to MCC that the statements contained in this Section 4 are true, correct and complete as of the date hereof and as of the Closing, except as set forth in the BIOPHAN’s disclosure schedule accompanying this Agreement (the “BIOPHAN Disclosure Schedule”).  The BIOPHAN Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this Section 4.

4.1              Authorization .  BIOPHAN is a Nevada company duly organized, validly existing and in good standing under the laws of the State of Nevada.  BIOPHAN has the full corporate power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party and to perform its respective obligations under this Agreement and under each such Ancillary Agreement.  All corporate actions or proceedings to be taken by or on the part of BIOPHAN to authorize and permit the execution and delivery by BIOPHAN of this Agreement and each of the Ancillary Agreements to which it is a party and to perform its respective obligations under this Agreement and under such Ancillary Agreements have been duly taken.  This Agreement has been duly executed and delivered by BIOPHAN and constitutes the legal, valid and binding obligation of BIOPHAN, enforceable in accordance with its terms and conditions subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity.  Each of the Ancillary Agreements to which BIOPHAN is a party will be, as of the Closing, duly executed and delivered by BIOPHAN and will constitute, as of the Closing, the legal, valid and binding obligation of BIOPHAN, enforceable in accordance wit