AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
Exhibit
10.1
AMENDMENT NO. 2 TO ASSET
PURCHASE AGREEMENT
This
Amendment No. 2 to Asset Purchase Agreement (the “Amendment”) is made and
executed this 19th day of
March, 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, as amended by Amendment No. 1 thereto dated February 8, 2010
(the “Agreement”),
pursuant to which Purchaser will acquire certain of the assets of
Sellers.
B. The
Agreement sets forth certain conditions to the Closing of the transactions
contemplated therein.
C. On
the terms and subject to the conditions set forth herein, Sellers and Purchaser
desire to modify the conditions to Closing, and certain additional terms and
provisions of the Agreement, in the manner specified in this
Amendment.
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:
1. Amendment of
Section 2.1. Section 2.1 of the Agreement is hereby amended by
deleting the first clause of the first sentence thereof (i.e., the preamble to
the payment schedule) and by inserting in lieu thereof the
following:
“Subject
to the terms and conditions of this Agreement, in consideration for the sale,
conveyance, assignment and delivery of the Purchased Assets, Purchaser shall
deliver to Sellers, to be divided among the Sellers as set forth on Schedule 2.1 or in
any other writing executed by Purchaser and each Seller, payment by wire
transfer to such bank account or bank accounts as shall be specified by
Xcorporeal, in immediately available funds, the sum of $8,000,000 (the “Purchase Price”) to be paid as
follows:”
2. Amendment of
Section 3.4. Section 3.4 of
the Agreement is hereby amended by the addition thereto of a new subparagraph
(c), which shall read in its entirety as follows:
“(c) a
sublicense of the Supersorbent Technology, in the form of Exhibit J attached
hereto, which shall have been executed by NQCI and Purchaser.”
3. Amendment of
Section 7.2(g). Section 7.2(g)
of the Agreement is hereby deleted in its entirety.
4. Addition of
Exhibit J. The Sublicense
Agreement in the form attached as Exhibit A to this
Amendment shall be deemed attached to, and incorporated for all purposes in, the
Agreement as Exhibit
J thereto.
5. Acknowledgement
Regarding Consents. Purchaser and
Sellers hereby acknowledge and agree that notwithstanding any provision of the
Agreement to the contrary, the consent of TRDF, whether pursuant to the Research
Agreement or otherwise, as well as the consents of Ameritech Business Systems
and Xxxxxx Leasing Corporation, shall not constitute required deliveries
pursuant to Section 3.2(b) of the Agreement, comprise Required Consents or in
any way be deemed to be conditions to Closing. In addition,
Xcorporeal and Operations agree to use reasonable efforts to obtain the consents
of Ameritech Business Systems and Xxxxxx Leasing Corporation referred to above
as soon as practicable following the Closing.
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6. Miscellaneous.
(a) 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.
(b) 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.
(c) 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)
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IN
WITNESS WHEREOF, the parties have caused this Amendment No. 2 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.
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SELLERS:
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PURCHASER:
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FRESENIUS
USA, INC.
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By:
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/s/ Xxxxx X.
XxXxxxx
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By:
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/s/ Mohsen
Reihany
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Name: Xxxxx
X. XxXxxxx
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Name: Mohsen
Reihany
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Its: Chairman
and Chief Executive Officer
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Its: Senior
Advisor to the Chairman of the Board
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XCORPOREAL
OPERATIONS, INC.
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By
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/s/
Xxxxx X. XxXxxxx
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Name: Xxxxx
X. XxXxxxx
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Its: Chairman
and Chief Executive Officer
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NATIONAL
QUALITY CARE, INC.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name: Xxxxxx
X. Xxxxxx
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Its: President
and Chief Executive Officer
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EXHIBIT
A
FORM OF
SUBLICENSE AGREEMENT
4
