AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
Exhibit
2.1
AMENDMENT
NO. 1 TO ASSET PURCHASE AGREEMENT
This
Amendment No. 1 to Asset Purchase Agreement (the “Amendment”) is made and executed
this 8th day of
February, 2010 by and among Xcorporeal, Inc., a Delaware corporation (“Xcorporeal”), Xcorporeal
Operations, Inc., a Delaware corporation and a wholly owned subsidiary of
Xcorporeal (“Operations”), National Quality
Care, Inc., a Delaware corporation (“NQCI,” and together with
Xcorporeal, Operations and NQCI, “Sellers”) and Fresenius USA,
Inc., a Massachusetts corporation (“Purchaser”). Capitalized
terms not otherwise defined herein shall have the meaning set forth in the
Agreement (as defined below).
RECITALS
A. On
December 14, 2009, Sellers and Purchaser entered into that certain Asset
Purchase Agreement (the “Agreement”) pursuant to which
Purchaser will acquire certain of the assets of Sellers.
B. The
Agreement provided that any party to the Agreement may terminate the Agreement
if the Closing has not occurred by February 28, 2010 (the “Deadline”).
C. On
the terms and subject to the conditions set forth herein, Sellers and Purchaser
are willing to extend the Deadline to permit additional time for
Closing.
AGREEMENT
NOW
THEREFORE, in consideration of the foregoing, and the representations,
warranties, and covenants set forth below, the parties hereto, intending to be
legally bound, hereby agree as follows:
Amendment of
Section 10.1(d). Section 10.1(d) of the Agreement is hereby
amended and restated in its entirety to be read as follows:
(d) by
Purchaser if the Stockholder Approvals have not been obtained on or before March
31, 2010;
Amendment of
Section 10.1(e).
Section 10.1 of the Agreement is hereby amended and restated in its
entirety to be read as follows:
(e) upon
written notice to the other party by Purchaser or any Seller, if the Closing has
not occurred on or before March 31, 2010 and this Agreement has not previously
been terminated, provided, however that the right to terminate the Agreement
under this Section 10.1(e) shall not be available to any party if the failure of
such party to fulfill any of its obligations under this Agreement has been the
cause of, or resulted in, the failure of the Closing to occur on or before such
date.
Miscellaneous.
Continuing Effect. Except as
expressly modified or amended by this Amendment, all the terms and provisions of
the Agreement shall remain in full force and effect.
Governing Law. This Amendment
and all actions arising out of or in connection with this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the conflicts of law provisions of the State of Delaware or of
any other state.
Counterparts. This Agreement
may be executed in one or more counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same agreement.
Facsimile copies of signed signature pages will be deemed binding
originals.
(Signature
Page Follows)
IN
WITNESS WHEREOF, the parties have caused this Amendment No. 1 to Asset Purchase
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the date and year first written above.
SELLERS:
|
PURCHASER:
|
|
FRESENIUS
USA, INC.
|
||
By: Xxxxx X.
XxXxxxx
|
By: Mohsen
Reihany
|
|
Name:
Xxxxx X. XxXxxxx
|
Name:
Mohsen Reihany
|
|
Its:
Chairman and CEO
|
Its:
Senior Advisor to Chairman of the Board
|
|
XCORPOREAL
OPERATIONS, INC.
|
||
By: Xxxxx X.
XxXxxxx
|
||
Name:
Xxxxx X. XxXxxxx
|
||
Its:
CEO
|
||
NATIONAL
QUALITY CARE, INC.
|
||
By: Xxxxxx
Xxxxxx
|
||
Name:
Xxxxxx Xxxxxx
|
||
Its:
CEO
|