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Exhibit 1
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (" AGREEMENT") dated as of July 27, 2000
between CARDIOVASCULAR LABORATORIES HOLDINGS, INC.,, a New York corporation,
("PURCHASER"), CARDIOVASCULAR LABORATORIES, LLC, a New York limited liability
company ("SELLER"), and CARDIOVASCULAR LABORATORIES, INC. OF PA, a Pennsylvania
corporation ("CLP").
WHEREAS:
A. Mobile Diagnostics CAT, LLC ("MDC"), Seller, CLP, CLIXhealth.com,
Inc., a Nevada corporation ("CLIX"), and others, entered into an Asset Purchase
Agreement dated February 22, 2000 ("AGREEMENT"), annexed hereto as EXHIBIT A,
pursuant to which MDS agreed to acquire substantially all of the assets of CLP;
B. The Agreement was amended by an Amended Asset Purchase Agreement
among Seller, which had been substituted as the Purchaser for MDC, CLP, CLIX,
and others May 24, 2000, annexed hereto as EXHIBIT B, whereby Seller contracted
to acquire the assets and assume certain n liabilities of CLP;
C. The transactions contemplated in the Agreement and Amended Agreement
closed in escrow on May 31, 2000, pending assignment and assumption, or payoff
by the Seller or certain of CLP's liabilities ("FIRST CLOSING");
D. Seller has no assets or liabilities other than those acquired or
assumed from CLP pursuant to the Agreement and the Amended Agreement, and those
assets and liabilities which have arisen in the ordinary course of business
since the First Closing; and
E. Purchaser desires to acquire all the assets of Seller and Seller
desires to sell the assets to Purchaser in exchange for Purchaser under the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the respective premises, mutual
covenants and agreements of the parties, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
I. PURCHASE AND SALE OF ASSETS
1.1 ASSETS TO BE SOLD. Upon the terms and subject to the conditions of this
Agreement, at the Closing (as defined in Section 1.2), Seller shall sell,
assign, transfer, convey and deliver to Purchaser, and Purchaser shall purchase
and acquire, from Seller, all of the right, title and interest of Seller in the
assets, properties and rights described in the Agreement, as amended by the
Amended Agreement, and as acquired
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by the Seller from CLP at the First Closing with Seller (collectively "Assets"),
including but not limited to all of Seller's rights under Purchaser's Ancillary
Documents and Seller's Ancillary Documents, as defined in the Agreement and the
Amended Agreement, in each case free and clear of any and all Liens (as defined
below). As used in this Agreement, "LIEN" means any lien, easement, encumbrance,
mortgage, chattel or collateral mortgage, hypothecation, equity, charge,
possibility of reversion or any other conflicting ownership or security interest
in favor of any third party created by, through or under Seller or any Affiliate
(as defined below) of Seller. Seller hereby assigns and transfers fully and
completely to Purchaser, without reservation of rights of any nature whatsoever,
all of its rights, remedies and obligations under the Agreement and the Amended
Agreement, including those surviving the First Closing, Purchaser hereby assumes
and accepts assignment and transfer of such rights, remedies and obligations,
and CLP here acknowledges and consents to such assignment, transfer and
assumption fully and completely and without reservation of any nature.
1.2 THE CLOSING. The closing of the purchase and sale of the Assets and the
transactions contemplated herein ("CLOSING") shall be deemed to have taken place
when this Agreement is executed ("CLOSING DATE"). The Closing shall be deemed to
be effective as of 12:01 A.M. on the Closing Date at each place where the Assets
are located.
II. PURCHASE PRICE AND PAYMENT
2.1 PURCHASE PRICE; METHOD OF PAYMENT. The aggregate consideration payable
by Purchaser in respect of the Assets, and all other rights of Purchaser
contemplated by this Asset Purchase Agreement ("PURCHASE PRICE") shall be the
assumption by Purchaser of the obligations and liabilities of Seller as set
forth in Article II and Article III of the Agreement, as amended by the Amended
Agreement, and the covenants and agreements of the Seller as set forth in
Article VI of the Agreement, as amended by the Amended Agreement, including but
not limited to Seller's obligations under the Seller Note payable to CLP which
was delivered to CLP by the Seller at the First Closing.
III. MISCELLANEOUS
3.1 SURVIVAL. All of the provisions of this Agreement, including without
limitation, all representations, warranties, covenants, agreements, obligations
and indemnities herein, shall survive the Closing.
3.2 NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally (including by
courier), telegraphed, telexed, sent by facsimile transmission or sent by
certified, registered or express mail, postage prepaid. Any such notice shall be
deemed given when so delivered personally, or if telegraphed, telexed or sent by
facsimile transmission, when transmitted, or, if mailed, forty-eight (48) hours
after the date of deposit in the United States mail, as follows:
(i) if to Purchaser, to:
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Cardiovascular Laboratories Holdings, Inc.
Attn: James H. Clingham, Esq.
32 Nassau Street
Princeton, NJ 08542
Fax: 609-924-4442
with a copy to:
Novack Burnbaum Crystal LLP
300 East 42nd Street
10th Floor
New York, New York 10017
Attention: Edward H. Burnbaum, Esq.
Fax: 212-986-2907
(ii) if to Seller, to:
Cardiovascular Laboratories, LLC
55 Atlantic Ave
Lynbrook, New York 11563
Fax: 516-593-6248
(iii) if to CLP, to:
Cardiovascular Laboratories of PA, Inc.
999 Old Eagle School Road, Suite 108
Wayne, Pennsylvania 19087
Attention: Mr. Timothy W. Cunningham
Fax: 610-293-7459
with a copy to:
Delancey W. Davis, Esq.
Box 477
Chester Springs, Pennsylvania, 19425
Fax: 610-293-7459
Any party may, by notice given in accordance with this Section 10.2 to the other
party, designate another address or person for receipt of notices hereunder.
3.3 ENTIRE AGREEMENT. This Asset Purchase Agreement constitutes the
entire agreement and understanding between the parties with respect to the
transfer of the Assets to Purchaser and the assumption by Purchaser of the
Seller's liabilities and supersedes all prior discussions, agreements and
undertakings, written or oral, of any and every nature with respect thereto.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, heirs, successors and
permitted assigns. Each exhibit and the schedules attached to the Agreement and
the Amended Agreement, shall be considered incorporated into this Asset Purchase
Agreement. Any matter which is disclosed in any portion of the Exhibits attached
to this Agreement is deemed to have been disclosed for the purposes of all
relevant provisions of this Agreement.
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3.4 WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION
OF REMEDIES. This Asset Purchase Agreement may be amended, superseded,
cancelled, renewed, or extended, and the terms hereof may be waived, only by a
written instrument signed by authorized representatives of the parties or, in
the case of a waiver, by an authorized representative of the party waiving
compliance. No such written instrument shall be effective unless it expressly
recites that it is intended to amend, supersede, cancel, renew or extend this
Agreement or to waive compliance with one or more of the terms hereof, as the
case may be. No delay on the part of any party in exercising any right, power or
privilege shall hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any such right, power or privilege, or any
single or partial exercise of any such right, power of privilege, preclude any
further exercise thereof or the exercise of any other right, power or privilege.
Except as otherwise provided herein, the rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy in or breach of
any representation, warranty, covenant or agreement contained in this Asset
Purchase Agreement shall in no way be limited by the fact that the act,
omission, occurrence or other state of facts upon which any claim of any such
inaccuracy or breach is based may also be the subject matter of any other
representation, warranty, covenant or agreement contained in this Asset Purchase
Agreement (or in any other agreement between the parties) as to which there is
no inaccuracy or breach.
3.5 GOVERNING LAW. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of New York (without regard to principles of conflicts of law). Each of
the parties hereto agrees to submit to the exclusive jurisdiction of any federal
or state court within the City of New York, New York, with respect to any claim
or cause of action arising under or relating to this Agreement. The parties
agree that any service of process to be made hereunder may be made by certified
mail, return receipt requested, addressed to the party at the address appearing
in Section 10.2 together with a copy to be delivered to such party's attorneys
as provided in Section 10.2. Such service shall be deemed to be completed when
received. Seller and Purchaser each waives any objection based on FORUM NON
CONVENIENS. Nothing in this paragraph shall affect the right of Seller or
Purchaser to serve legal process in any other manner permitted by law.
3.6 BINDING EFFECT; NO ASSIGNMENT, NO THIRD-PARTY RIGHTS. This Asset
Purchase Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto or by
operation of law.
3.7 COUNTERPARTS. This Asset Purchase Agreement may be executed by
the parties hereto in any number of separate counterparts which together shall
constitute one and the same instrument.
3.8 SEVERABILITY OF PROVISIONS. If any provision or any portion of
any provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Asset Purchase Agreement, or the application of such
provision or portion of such provision is held invalid or unenforceable to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and such provision or portion of
any provision as shall have been held invalid or unenforceable shall be deemed
limited or modified to the extend necessary to make it valid and enforceable; in
no event shall this Agreement be rendered void or unenforceable.
3.9 EXHIBITS AND SCHEDULES. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Asset Purchase Agreement as if set forth herein. Any matter disclosed on any
schedule referred to herein shall be deemed also to have been
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disclosed on any other applicable schedule referred to herein.
3.10 CAPTIONS. All section titles or captions contained in this
Asset Purchase Agreement or in any schedule or exhibit annexed hereto or
referred to herein, and the table of contents to this Asset Purchase Agreement,
are for convenience only, shall not be deemed a part of this Asset Purchase
Agreement and shall not affect the meaning or interpretation of this Asset
Purchase Agreement. All references herein to sections shall be deemed references
to such parts of this Asset Purchase Agreement, unless the context shall
otherwise require.
IN WITNESS WHEREOF, the parties have duly executed this Agreement,
all as of the date first written above.
PURCHASER:
CARDIOVASCULAR LABORATORIES HOLDINGS, INC.
BY:
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Seller:
CARDIOVASCULAR LABORATORIES, LLC.
BY:
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Managing Member
CARDIOVASCULAR LABORATORIES OF PA, INC.
BY:
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President
