AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment") is made and
entered into on September 18, 2003 by and between NONLINEAR MEDICINE, INC., a
Delaware corporation ("Purchaser"), and ENHANCED CARDIOLOGY, INC., a Texas
corporation ("Seller").
RECITALS:
WHEREAS, the parties hereto entered into an Asset Purchase Agreement (the
"Agreement") dated May 29, 2003, a copy of which is attached hereto as Exhibit
"A"; and
WHEREAS, the parties hereto now wish to amend certain terms and conditions
of the Agreement and to document such amendments in this Amendment; and
WHEREAS, all capitalized terms used but not defined in this Amendment shall
have the meanings given to them in the Agreement.
NOW, THEREFORE, in consideration of the various mutual agreements,
representations, warranties, acknowledgments and covenants contained herein, and
for other good and valuable consideration, the receipt and adequacy of which are
hereby conclusively acknowledged, each of the parties hereto, intending to be
legally bound, hereby represents, warrants, covenants, acknowledges and agrees
as follows:
AGREEMENT:
1. Section 2.1 of the Agreement is hereby deleted in its entirety, and
the following Section 2.1 is hereby inserted in its place: "Purchase Price." The
total purchase price (the "Purchase Price") for the Assets is One Hundred
Seventy Five Thousand Dollars ($175,000.00). Seller acknowledges and agrees that
(a) Purchaser has already paid $50,000.00 of the total Purchase Price to the
Seller, and (b) the remaining amount of the Purchase Price to be paid to Seller
is $125,000.00. This remaining amount of the Purchase Price shall be paid by
Purchaser to Seller at the Closing (as defined herein).
2. The following language is hereby added to the end of Section 3.7 of
the Agreement: "The Seller does not own or have any other rights of any kind in
any intellectual property or other assets that are in any way related to or
required or used in, by or in connection with any of the Assets that is not
being sold to the Purchaser hereunder. The inventorship for the two patents as
listed on Exhibit "A" hereto and the assignments of those two patents as listed
on Exhibit "A" hereto is correct and complete." All other provisions of Section
3.7 shall remain in full force and effect.
3. All of the other terms and conditions of the Agreement shall remain
in full force and effect and shall not be changed or amended by this Amendment.
4. This Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of Florida without giving effect to its
conflict of law rules.
5. This Amendment may be executed in counterparts, both of which
together shall constitute one instrument.
6. All of the Recitals stated at the beginning of this Amendment and
Exhibit "A" to this Amendment are hereby incorporated by reference into and made
a part of this Amendment, each with the full power and effect as each of them
would have if it was a provision of this Amendment.
7. A facsimile of this Amendment or any counterpart of this Amendment,
including a facsimile signature, shall be as effective as an original.
8. Each party hereto has all necessary power and authority to execute
and perform this Amendment and the various obligations contained in this
Amendment. Each party hereto has obtained all authorizations and consents as
required to execute this Amendment and to perform all obligations contained in
this Amendment. This Amendment constitutes the legal, valid, binding and
enforceable agreement of each party hereto, and does not conflict with any law
or agreement to which any party is subject.
9. Any action, claim or other proceeding that arises out of or in
connection with this Amendment shall be brought in the applicable Federal or
state court located in Palm Beach County, Florida, and each party hereto hereby
irrevocably waives any objection that it may have to such selection of venue,
including, without limitation, any objection based on an assertion that such
selection of venue constitutes an inconvenient forum. The non-prevailing party
in any action or proceeding which arises out of or in connection with this
Amendment shall be responsible for all expenses associated with any such action,
claim or proceeding, including, without limitation, all attorneys' fees and
associated expenses.
10. This Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of Florida without giving effect to its
conflict of law rules.
11. This Amendment (along with the Agreement as specifically amended
by this Amendment) constitutes the entire agreement among the parties hereto
regarding the matters dealt with herein, and it totally supersedes any other
agreements or understandings, whether oral or written, between the parties
hereto regarding any of the matters discussed herein.
12. Each of the parties hereto shall promptly perform all actions and
execute all documents reasonably required or desired by the other party hereto
in order to effectuate the intent of this Amendment.
13. The right to assign this Amendment and the rights and obligations
of either party hereto shall be identical to the assignment rights contained in
the Agreement. This Amendment and the parties' rights hereunder shall be binding
upon and inure to the benefit of and be enforceable by all parties hereto, their
respective legal representatives, successors and permitted assigns.
14. This Amendment may not be terminated, modified, or amended orally
or by any course of conduct or usage of trade but only by an agreement in
writing duly executed by
2
all of the parties hereto. Any notices required or desired under this Amendment
shall be given pursuant to the procedures contain in the Agreement.
15. Any waiver of a breach of any of the provisions of this Amendment
must be in writing and signed by all parties hereto and shall not be deemed a
waiver of any other provision of this Amendment.
IN WITNESS WHEREOF, the parties hereto or their duly authorized
representatives have executed this Amendment to Asset Purchase Agreement on the
date first above written.
NONLINEAR MEDICINE, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx,
President
ENHANCED CARDIOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
Chairman, Pres.
3
EXHIBIT "A"
ASSET PURCHASE AGREEMENT DATED MAY 29, 2003
(AS SIGNED BY THE PARTIES THERETO)
4
