Unassociated Document


    Exhibit
10.1


    AMENDMENT
NO. 1 TO AGREEMENT

     

    This
Amendment No. 1 to Agreement (the “Amendment”) is made and
executed this 11th day of February, 2010 by
and between Fresenius USA, Inc., a Massachusetts corporation (“FUSA”), and Xcorporeal, Inc.,
a Delaware corporation (“Xcorporeal”).

     

    Reference
is made to that certain Asset Purchase Agreement dated as of December 14, 2009,
by and among FUSA, Xcorporeal, Xcorporeal Operations, Inc. and National Quality
Care, Inc. (the “Asset Purchase
Agreement”), pursuant to which Xcorporeal, Operations and NQCI intend to
sell to FUSA the Purchased Assets.  Any capitalized terms not defined
herein shall have the meanings ascribed to them in the Asset Purchase
Agreement.

     

    RECITALS

    


    A.           On
December 14, 2009, FUSA and Xcorporeal entered into a side agreement
(the “Agreement”)
pursuant to which: (a) FUSA will pay Xcorporeal for certain expenses to be
incurred by Xcorporeal prior to the Closing; (b) FUSA will utilize certain
consulting services of Xcorporeal; and (c) Xcorporeal will reimburse FUSA for
certain expenses incurred in anticipation of Closing in the event the Closing
does not take place as a result of Xcorporeal consummating a Superior
Proposal.

     

    B.           The
Agreement provided that it shall terminate if Closing has not occurred by
February 28, 2010 (the “Deadline”).

     

    C.           On
the terms and subject to the conditions set forth herein, FUSA and Xcorporeal
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 2(d)(iii).  Section 2(d)(iii) of the Agreement is
hereby amended and restated in its entirety to be read as follows:

     

    (iii)       March
31, 2010.

     

    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 Amendment 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 Amendment
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 hereto have executed this Amendment as of the day
and year set forth above.

     

    
      
        
          
            
              
                
                  	
                          FRESENIUS USA, INC.

                        	 
      
	 
      	 
      
	
                          By:
      /s/  Mohsen
      Reihany

                        	 
      
	
                          Name:
      Mohsen Reihany

                        	 
      
	
                          Its:     
      Senior Advisor to Chairman of the Board

                        
	 
      	 
      
	
                          XCORPOREAL,
      INC.

                        	 
      
	 
      	 
      
	
                          By:
      /s/  Kelly J.
      McCrann

                        	 
      
	
                          Name: Kelly J. McCrann

                        	 
      
	
                          Its:     
      Chairman & CEO