Exhibit 10.8

     

    EMPLOYMENT
      AGREEMENT 

     

         This
      Employment Agreement (“Agreement”)
      is
      entered into as of August 10, 2007, between Xcorporeal, Inc., a Delaware
      corporation (“Company”),
      and
      Robert Weinstein, an individual (“Executive”).
      

     

    Recitals 

     

         A. The
      Company is engaged in the business of developing and marketing Hospital
      Artificial Kidney (HAK), Wearable Artificial Kidney (WAK), Hospital
      Ultrafiltration Device (HUD) and Wearable Ultrafiltration Device
      (WUD) products, including performing lab experimentation, equipment
      testing, design review, verification, validation, development of prototypes
      and
      reporting, and U.S. Food & Drug Administration and other regulatory approval
      processes (the “Business”).
      

     

         B. The
      Company desires to employ the Executive as its Chief Financial Officer, and
      the
      Executive desires to be so employed by the Company, on the terms and conditions
      hereinafter set forth. 

     

         NOW,
      THEREFORE, in consideration thereof and of the covenants and conditions
      contained herein, the parties agree as follows: 

     

    Agreement 

     

         1. Board
      Approval.
      The
      Company and the Executive acknowledge that this entire Agreement is subject
      to
      approval by the Company’s Board of Directors (“Board”).
      

     

         2. Employment.
      The
      Company hereby agrees to employ the Executive, and the Executive hereby agrees
      to serve as the Chief Financial Officer of the Company. The Executive agrees
      to
      perform such lawful services customary to that office and to perform those
      services assigned to him from time to time by the Company’s Executive Chairman,
      Chief Executive Officer, President, Chief Operating Officer, or Board. The
      Executive further agrees to use his best ability and skills to promote the
      interests of the Company and to devote his full business time and energies
      to
      the business and affairs of the Company. 

     

         3. Term
      of Agreement.
      The
      Executive’s employment with the Company shall commence on a date to be
      determined by the parties, subject to the Board’s approval of this Agreement,
      which date when determined will be the “Effective
      Date”
and
      provided in Section 10 below. Subject to the terms of Sections 5 and 6
      of this Agreement, the Term of this Agreement will commence on the Effective
      Date for a period of three (3) years, if the Executive relocates his
      residence to Southern California within one year after the Effective Date,
      and
      thereafter will renew automatically for one (1) year terms unless either
      the Company or the Executive provides written notice of non-renewal to the
      other
      party not later than ninety (90) days prior to the scheduled expiration of
      the Term in effect. In the event the Executive does not relocate his residence
      to Southern California within one year after the Effective Date, the Term of
      this Agreement will be for a period of one (1) year, and thereafter will
      continue on a month-to-month basis subject to the terms of Sections 5 and 6
      of this Agreement. 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

         4. Compensation
      and Other Related Matters.
      

     

              (a)
      Salary.
      As
      compensation for services rendered hereunder, the Executive shall receive an
      annual base salary (“Base
      Salary”)
      of Two
      Hundred Seventy-Five Thousand Dollars ($275,000.00), which salary shall be
      paid
      in accordance with the Company’s then prevailing payroll practices. The Company
      shall not decrease the Executive’s Base Salary. At the Company’s sole discretion
      the Executive’s Base Salary may be increased annually. Notwithstanding the
      foregoing, commencing January 1, 2008 and annually thereafter, the Base
      Salary shall be increased by at least the Consumer Price Index for Los Angeles,
      California (or a reasonable proxy thereof). 

     

              (b)
      Bonus.
      During
      the term of this Agreement, and in the Company’s sole discretion, the Executive
      shall be eligible to receive an annual discretionary bonus of up to 50% of
      the
      Executive’s base salary at the end of each calendar year, subject to the
      Executive and the Company achieving annual performance objectives. The annual
      performance objectives will be agreed before the start of each calendar year
      between the Executive and the Chief Operating Officer, subject to the approval
      of the Company’s Board of Directors or its Compensation Committee. To receive
      each annual discretionary bonus, the Executive must still be employed with
      the
      Company as of December 31 of the year for which the annual discretionary
      bonus is payable and not be in breach at the time the bonus is payable. The
      Company agrees that the Executive shall receive a guaranteed bonus of no less
      than 20% of the Executive’s Base Salary at the end of calendar year 2007
      (“2007
      Bonus”).
      The
      2007 Bonus shall be calculated based on the total Base Salary actually earned
      by
      the Executive between the Effective Date and December 31, 2007. Subject to
      achievement of the 2007 performance objectives agreed upon the parties set
      forth
      in Schedule I attached hereto, and at the Company’s sole discretion, the
      Executive shall be eligible to receive a discretionary bonus (in addition to
      the
      2007 Bonus) at the end of calendar year 2007. 

     

              (c)
      Stock
      Options.
      

     

                   (i) Grant
      of Shares.
      On the
      Effective Date, the Executive shall be granted options to purchase three hundred
      thousand (300,000) shares of common stock under the 2006 Incentive Compensation
      Plan (the “Plan”).
      Such
      options will vest and be exercisable at a rate of twenty-five percent (25%)
      per
      year commencing on the first anniversary of the date of grant and will have
      an
      exercise price equal to the Fair Market Value, as such term is defined in the
      Plan, on the date of grant. 

     

                   (ii) Acceleration.
      Notwithstanding provision (i) above, and provided that the Executive has
      already relocated to Southern California: (A) any options not vested upon
      Executive’s death or the termination of the Executive’s employment because he
      has become Disabled (as defined below) will immediately vest and be exercisable
      in accordance with the Plan; (B) if the Company terminates the Executive
      without Cause (as defined below) before the end of twelve (12) months from
      the
      Effective Date, the first tranche of twenty-five percent (25%) of the
      Executive’s options will immediately vest and be exercisable in accordance with
      the Plan upon termination; (C) if the Company terminates the Executive without
      Cause after twelve (12) months but before the end of eighteen
      (18) months from the Effective Date, the second tranche of twenty-five
      percent (25%) of the Executive’s options will immediately vest and be
      exercisable 

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    in
      accordance with the Plan; (D) if the Company terminates the Executive
      without Cause after eighteen (18) months but before the end of thirty
      (30) months from the Effective Date, the third tranche of twenty-five
      percent (25%) of the Executive’s options will immediately vest and be
      exercisable in accordance with the Plan; and (E) if the Company terminates
      the Executive without Cause after thirty (30) months from the Effective
      Date, the entire grant of three hundred thousand (300,000) options described
      in
      4(c)(i) will immediately vest and be exercisable in accordance with the Plan.
      

     

                   (iii) Fair
      Market Value.
      In the
      event, at the time the Executive elects to exercise any options, the common
      stock of Employer is not trading in sufficient volume to permit the Executive
      to
      immediately sell the common stock acquired upon exercise in the open market
      (subject to any then applicable securities laws), the Executive may pay the
      exercise price for such shares by either (A) the surrender of that portion
      of the exercised option shares having a Fair Market Value on the date of
      exercise equal to the aggregate exercise price of the options so exercised
      or
      (B) the surrender of Employer’s common stock having a Fair Market Value on
      the date of exercise equal to the exercise price of the options so exercised
      and, in the case of common stock acquired by the Executive directly or
      indirectly from Employer, has been owned by the Executive for a sufficient
      period to avoid a compensation expense to Employer under then applicable
      accounting rules. 

     

                   (iv) Change
      of Control.
      

     

                        (A) Provided
      the Executive has relocated to Southern California prior to the effective date
      of a Change in Control, if the acquirer in the Change in Control does not adopt
      the Executive’s option grant under the Plan in accordance with 26 C.F.R. 1.424-1
      or offer the Executive a substitute grant under the acquirer’s plan having
      similar economic value to the Executive’s option grant under the Plan, any
      options granted to the Executive under the Plan that would not otherwise be
      vested on the effective date of the Change in Control shall immediately vest
      and
      be exercisable immediately prior to the effective date of the Change in Control.
      

     

                        (B) Provided
      the Executive has relocated to Southern California before the effective date
      of
      a Change in Control, if the acquirer in the Change in Control adopts the
      Executive’s option grant under the Plan in accordance with 26 C.F.R. 1.424-1, or
      offers the Executive a substitute grant under the acquirer’s stock option plan
      having similar economic value to the Executive’s option grant under the Plan,
      and (1) within six (6) months following the effective date of the
      Change in Control the acquirer terminates the Executive’s employment without
      Cause, or (2) if within twelve (12) months of the Effective Date and
      within six (6) months of the effective date of the Change in Control if the
      acquirer terminates the Executive with or without cause, then to the extent
      that
      twenty-five percent (25%) or more of the Executive’s total granted options
      remain unvested on the date his employment terminates, twenty-five percent
      (25%)
      of the Executive’s total granted options from the acquirer (by adoption or
      grant) shall immediately vest and be exercisable. For the avoidance of doubt,
      if
      the acquirer does not agree to include this right in its substitute grant to
      the
      Executive, the Executive’s option grant under the Plan shall be treated as under
      Section 4(c)(iv)(A) above. 

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

                        (C) If
      the Executive has not relocated to Southern California prior to the effective
      date of the Change in Control, the Executive shall not be entitled to any
      acceleration in the vesting of his options under the Plan in connection with
      the
      Change in Control. 

     

                        (D) For
      purposes of this Agreement, a “Change
      in Control”
shall
      be defined as (1) the acquisition of the Company by another entity by means
      of a transaction or series of related transactions (including, without
      limitation, any reorganization, merger, stock purchase or consolidation) or
      (2) the sale, transfer or other disposition of all or substantially all of
      the Company’s assets. 

     

                   (v) In
      all other respects, the stock options granted under this paragraph 4(c) shall
      be
      subject to the Plan. 

     

                   (vi) In
      addition to the stock options described above, the Executive will be eligible
      to
      receive stock, stock options, or other securities of the Company under plans
      that are provided to other similar executives of the Company. Future grants,
      if
      any, will vest according to the terms at time of grant. 

     

              (d)
      Other
      Benefits.
      The
      fringe benefits, perquisites, and other benefits of employment to be provided
      to
      the Executive shall be equivalent to such benefits and perquisites as are
      provided to other similar executives of the Company as amended from time to
      time. The Executive’s Paid Time Off is defined and will accrue pursuant to the
      Paid Time Off provisions of the Company’s Employee Handbook, except that the
      Executive will be entitled to vacation of four (4) weeks during each year of
      employment, which may be taken by the Executive upon prior notice in accordance
      with the Company’s policies applicable to Company executives. In addition, the
      Executive will be provided with accidental death and disability and long-term
      disability insurance in amounts each no less than the Executive’s annual Base
      Salary then in effect, or reimbursed for the reasonably equivalent cost of
      a
      private disability policy up to $1000 per month. If necessary, the Company
      will
      reimburse the Executive for COBRA coverage until such time as the Executive
      is
      covered under the Company’s group medical and dental plans. 

     

              (e)
      Equipment.
      Company
      will provide Executive with a suitable notebook computer and related equipment
      to enable Executive to conduct business from his New York home office. The
      Company agrees to provide other personal computer equipment necessary for the
      Executive to perform his duties upon submission of request by the Executive
      and
      approval by the Company. All equipment provided will remain the Company’s
      property and the Executive agrees to provide the Company access to the equipment
      immediately upon request due to regulatory requirements or any other reason.
      

     

              (f)
      Expenses.
      The
      Executive will be reimbursed for all reasonable and customary out-of-pocket
      expenses actually incurred by him in the furtherance of his duties under this
      Agreement. Such expenses shall be reimbursed upon submission to the Company
      of
      invoices containing original receipts for all such expenditures, and upon review
      by the Company with respect to the reasonable nature and amount thereof.
      Reasonable expenses include reimbursement for telephone charges for
      business-related calls from the Executive’s New York home office and mobile
      phone charges for business-related calls, provided that itemized invoices


     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

     

    are
      submitted within thirty (30) days of the Executive’s receipt of the
      statement for those charges. 

     

              (g)
      Commuting
      Expenses.
      The
      Company shall reimburse the Executive for reasonable commuting expenses,
      consistent with the Travel Policy in the Company’s Employee Handbook, between
      the Executive’s Irvington, New York, residence and the Company’s Los Angeles,
      California offices for a period of up to twelve (12) months from the
      Effective Date. 

     

              (h)
      Presence
      in LA Office.
      Executive agrees to spend at least one week per month at the Company’s Los
      Angeles office located at 11150 Santa Monica Boulevard, Suite 340, 90025.


     

              (i)
      Moving
      Expenses.
      Within
      twelve (12) months from the Effective Date, Executive will have the
      opportunity to relocate his and his immediate family’s one residence to Southern
      California. The Company agrees to reimburse the Executive for the reasonable
      expenses incurred in transporting his and his immediate family’s one household
      and belongings from Irvington, New York to Los Angeles, California. The Company
      further agrees to reimburse the Executive for the closing costs incurred by
      the
      Executive with respect to the sale of his New York residence and the purchase
      of
      his new residence in California. The Executive agrees to provide the Company
      with an estimate of the cost for approval before the move, and after the move,
      the Company will reimburse the Executive the actual costs paid. 

     

         5. Termination.
      

     

              (a)
      Employment
      At-Will.
      Executive’s employment with the Company is at-will, which means that either the
      Executive or the Company can terminate it at any time, without notice, for
      any
      cause, or no cause. For purposes of this Agreement, a termination shall be
      for
“Cause”
if
      Executive, in the good faith opinion of the Company’s Board,: 

     

                   (i) Commits
      an act of fraud, moral turpitude, misappropriation of funds or embezzlement
      in
      connection with his duties; 

     

                   (ii) Materially
      breaches the Executive’s fiduciary duty to the Company, including, but not
      limited to, acts of self-dealing (whether or not for personal profit);


     

                   (iii) Materially
      breaches this Agreement, provided, however, that (A) no termination shall
      occur on that basis unless, if the breach is curable, the Company first provides
      the Executive with written notice to cure (the notice to cure shall reasonably
      specify the acts or omissions that constitute the Executive’s material breach),
      (B) the Executive shall have a reasonable opportunity (not to exceed
      30 days after the date of notice to cure) to cure the breach and
      (C) termination shall be effective as of the date of notice to cure;


     

                   (iv) Materially
      breaches the Confidentiality Agreement or the Company’s written Codes of Ethics
      as adopted by the Board; 

     

                   (v) Materially
      violates any provision of Company’s written Employee Handbook, or any applicable
      state or federal law or regulation; 

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

                   (vi) Except
      during a Disability Period, defined below, fails or refuses to comply with
      all
      relevant and material obligations, assumable and chargeable to an executive
      of
      his corporate rank and responsibilities, under the Sarbanes-Oxley Act and the
      regulations of the Securities and Exchange Commission promulgated thereunder;
      

     

                   (vii) Fails
      or refuses to comply with the lawful directives of the Company in the
      performance of his duties under this Agreement (except during a Disability
      Period); 

     

                   (viii) Engages
      in willful misconduct that is materially injurious to the Company; 

     

                   (ix) Uses
      illegal substances, or excessively uses alcohol to a point of substantially
      impairing his faculties, senses, or judgment, while on Company premises or
      performing Company Business; 

     

                   (x) Is
      convicted of, or enter a plea of guilty or no contest to, a felony or
      misdemeanor under state or federal law, other than a traffic violation or
      misdemeanor not involving dishonesty or moral turpitude; or 

     

                   (xi) Commits
      an act of gross neglect or gross misconduct which the Company reasonably deems
      to be good and sufficient cause. 

     

              (b)
      Good
      Reason.
      For
      purposes of this Agreement, a resignation shall be for “Good
      Reason”
if
      tendered by the Executive within thirty (30) days of any of the following
      actions by or involving the Company: 

     

                   (i) Assignment
      to the Executive of duties materially inconsistent with the Executive’s status,
      or a substantial reduction in the nature or status of the Executive’s
      responsibilities; 

     

                   (ii) After
      the Executive’s relocation to Los Angeles, the relocation of the Executive’s
      site of employment outside a 30 mile radius of Los Angeles without the
      Executive’s consent, except for reasonably required travel on Company’s
      Business; 

     

                   (iii) Failure
      to cause any acquiring or successor entity following a Change in Control to
      assume the Company’s obligations under this Agreement, unless such assumption
      occurs by operation of law; 

     

                   (iv) Material
      breach of this Agreement by the Company including failure to timely pay to
      the
      Executive any amount due under Section 3, which continues after written
      notice and reasonable opportunity to cure (not to exceed 30 days after the
      date of notice); or 

     

                   (v) Demand
      by the Company, Board, or any other senior executive that the Executive violate
      any relevant and material obligations, assumable and chargeable to an executive
      of his corporate rank and responsibilities, under the Sarbanes-Oxley Act and
      the
      regulations of the Securities and Exchange Commission promulgated thereunder.
      

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

     

              (c)
      Long
      Term Disability.
      If the
      Executive becomes Disabled, the Company may terminate his employment if he
      becomes Disabled upon thirty (30) days prior written notice to the
      Executive. “Disabled”
means
      the Executive is: (i) unable to engage in any substantial gainful activity
      by reason of any medically determinable physical or mental impairment, as
      diagnosed by a reputable, independent physician, which can be expected to result
      in death or can be expected to last for a continuous period of not less than
      six
      (6) months, or (ii) by reason of any medically determinable physical
      or mental impairment, as diagnosed by a reputable, independent physician, which
      can be expected to result in death or can be expected to last for a continuous
      period of not less than six (6) months. 

     

              (d)
      Death.
      The
      Executive’s employment shall terminate immediately upon the death of the
      Executive. 

     

         6. Compensation
      Upon Termination or Death, or During Disability.
      

     

              (a)
      Cause.
      If the
      Company terminates the Executive’s employment for Cause, the Company shall
      continue to pay the Executive the Base Salary at the rate set forth in Section
      4(a) through the date of termination of the Executive’s employment, together
      with any benefits accrued under Section 4 through the date of termination
      including, but not limited to, payment for accrued vacation days and
      reimbursement for expenses (collectively, “Accrued
      Obligations”).
      Thereafter, the Company shall have no further obligation to the Executive under
      this Agreement. 

     

              (b)
      Termination
      Without Cause by the Company.
      If the
      Company terminates the Executive’s employment without Cause as defined in
      Section 5(a) of this Agreement, the Company shall pay the Executive an amount
      equal to twelve (12) months of the Executive’s Base Salary at the rate in
      effect at the date of termination of the Executive’s employment plus all Accrued
      Obligations. In addition to any rights under COBRA, the term for continued
      medical benefits provided by the Company to the Executive and his family shall
      continue for a period of twelve (12) months from the date of termination without
      Cause, provided that coverage will terminate sooner if the Executive becomes
      eligible for coverage under another employer’s plan. Thereafter, the Company
      shall have no further obligation to the Executive under this Agreement.


     

              (c)
      Termination
      for Good Reason by the Executive.
      If the
      Executive terminates the Executive’s employment with Good Reason as defined in
      Section 5(b) of this Agreement, the Company shall pay the Executive an amount
      equal to twelve (12) months of the Executive’s Base Salary at the rate in
      effect at the date of termination of the Executive’s employment plus all Accrued
      Obligations. In addition to any rights under COBRA, the term for continued
      medical benefits provided by the Company to the Executive and his family shall
      continue for a period of twelve (12) months from the date of termination for
      Good Reason, provided that coverage will terminate sooner if the Executive
      becomes eligible for coverage under another employer’s plan. Thereafter, the
      Company shall have no further obligation to the Executive under this Agreement.
      

     

              (d)
      Disability.
      During
      any period that the Executive fails to perform his full-time duties with the
      Company as a result of becoming Disabled (the “Disability
      Period”),
      the
      Executive shall continue to receive his Base Salary at the rate set forth in
      Section 4(a) of this 

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

     

    Agreement
      and all Accrued Obligations, less any compensation payable to the Executive
      under the applicable disability insurance plan of the Company during such period
      until this Agreement is terminated pursuant to Section 5(c). Thereafter,
      the Executive’s benefits shall be determined under the Company’s insurance and
      other compensation programs then in effect in accordance with the terms of
      such
      programs and the Company shall have no further obligation to the Executive
      under
      this Agreement. 

     

              (e)
      Death.
      In the
      event of the Executive’s death, the Executive’s beneficiary shall be entitled to
      receive the Base Salary at the rate set forth in Section 4(a) until the date
      of
      his death plus all Accrued Obligations. Thereafter, the Executive’s benefits
      shall be determined under the Company’s insurance and other compensation
      programs then in effect in accordance with the terms of such programs and the
      Company shall have no further obligation to the Executive or the Executive’s
      beneficiary under this Agreement. 

     

         7. Confidentiality.
      

     

              (a) The
      Executive will execute the Company’s standard Executive Innovation, Proprietary
      Information and Confidentiality Agreement (“Confidentiality
      Agreement”),
      which
      is incorporated herein by reference. 

     

              (b)
      No
      Solicitation of Employees.
      During
      employment with Company and for one (1) year thereafter the Executive will
      not encourage or solicit any other employee of Company to terminate his or
      her
      employment or independent contractor who was involved in a project related
      to
      the Business, for any reason, nor will the Executive assist others to do so.
      General advertisements and employment fairs shall not be construed as
      solicitation for purposes of this Section. 

     

              (c)
      No
      Solicitation of Customers.
      During
      employment with Company and for one (1) year thereafter the Executive will
      not, directly or indirectly call on, or otherwise solicit, business from any
      actual customer or potential customer known by the Executive to be targeted
      by
      Company, nor will he assist others in doing so. 

     

              (d)
      Disclosure
      of Confidential Information:
      Executive shall not accept employment with any direct competitor of Company
      for
      a period of one (1) year where it would be impossible for Executive to
      perform his new job without using or disclosing trade secrets or confidential
      information. 

     

         8. Insurance
      and Indemnification.
      

     

              (a) The
      Company shall provide the Executive with officers and directors’ insurance, or
      other liability insurance, consistent with its usual business practices, to
      cover the Executive against all insurable events related to his employment
      with
      the Company. 

     

              (b) The
      Company shall indemnify, hold harmless and pay the cost of defending the
      Executive to the fullest extent permitted by applicable law in connection with
      any claim, action, suit, investigation or proceeding arising out of or relating
      to performance by the Executive of services for, or action of the Executive
      as
      an officer or employee of the Company, or of any other person or enterprise
      at
      the request of the Company. The Company shall also pay 

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

     

    all
      judgments, awards, settlement amounts and fines associated with the foregoing.
      Reasonable legal cost and expenses incurred by the Executive relating to the
      performance of his duties and responsibilities as an executive officer of the
      Company and/or in defending a claim, action, suit or investigation or criminal
      proceeding shall be paid by the Company in a timely manner upon the receipt
      by
      the Company of an undertaking by or on behalf of the Executive to repay said
      amount if it shall ultimately be determined that the Executive is not entitled
      to be indemnified by the Company for such legal fees and related costs;
      provided, however, that this arrangement shall not apply to a non-derivative
      action commenced by the Company against the Executive. The foregoing shall
      be in
      addition to any indemnification rights the Executive may have by law, charter,
      by-law or otherwise. If the Company assumes responsibility for the defense
      of an
      action brought against the Executive (i) the Company may not agree to any
      settlement without the Executive’s prior written approval (which shall not be
      unreasonably withheld) and (ii) the Executive will fully cooperate with the
      Company’s efforts in defense of the matter. 

     

         9. Miscellaneous.
      

     

              (a)
      Capacity.
      The
      Executive represents and warrants that he is not a party to any agreement that
      would prohibit the Executive from entering into this Agreement or fully
      performing the Executive’s obligations hereunder. 

     

              (b)
      Notice.
      All
      notices of termination and other communications provided for in this Agreement
      shall be in writing and shall be deemed to have been duly given when delivered
      by hand or mailed by United States registered mail, return receipt requested,
      addressed as follows: 

     

                   If
      to
      the Company:
      

     

    Xcorporeal,
      Inc.

    11150
      Santa Monica Boulevard, Suite 340

    Los
      Angeles, California 90064

    Attn:
      Daniel S. Goldberger 

     

                   With
      a copy to: 

     

    Dreier
      Stein & Kahan LLP

    1620
      26th
      Street,
      Sixth Floor, North Tower

    Santa
      Monica, California 90404

    Attn:
      John C. Kirkland, Esq. 

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

     

                   If
      to
      the Executive: 

     

    Robert
      Weinstein

    60
      Hampden Lane

    Irvington,
      New York 10533 

     

                   With
      a copy to: 

     

    Ellenoff
      Grossman & Schole, LLP

    370
      Lexington Avenue

    New
      York,
      New York 10017

    Attn:
      Barry I. Grossman, Esq. 

     

    or
      to
      such other address as either party may designate by notice to the other, which
      notice shall be deemed to have been given upon receipt. 

     

              (c)
      Severability.
      The
      invalidity or unenforceability of any provisions under particular facts and
      circumstances will not affect the validity or enforceability either of other
      provisions or, under other facts and circumstances, of such provisions. In
      addition, such provisions will be reformed to be less restrictive if under
      such
      facts and circumstances they would then be valid and enforceable. 

     

              (d)
      Governing
      Law.
      The
      validity, construction and performance will be governed by the laws, without
      regard to the laws as to choice or conflict of laws, of the State of California.
      

     

              (e)
      Arbitration.
      Any
      dispute, controversy or claim arising out of or relating to this Agreement,
      or
      the Executive’s relationship with the Company or its affiliates, including
      without limitation any claims of wrongful termination or employment
      discrimination (whether based on age, gender, race, color, religion or any
      other
      protected class), and the issue of arbitrability of any claims, will be
      submitted to and resolved by final and binding arbitration before a retired
      judge at Judicial Arbitration and Mediation Services, Inc. (“JAMS”)
      or its
      successor in Santa Monica, California, under applicable JAMS rules. To the
      maximum extent permitted by applicable law, the prevailing party will be awarded
      its arbitration, attorney and expert witness fees, costs and expenses. Judgment
      on any interim or final award of the arbitrator may be entered in any court
      of
      competent jurisdiction. 

     

              (f)
      Headings.
      The
      sections and other headings contained in this Agreement are for reference
      purposes only and will not affect in any way the meaning or interpretation
      of
      this Agreement. 

     

              (g)
      Waiver.
      No
      waiver by either party of a breach of any provision will be construed as a
      waiver of any subsequent or different breach, and no forbearance by a party
      to
      seek a remedy for noncompliance or breach by the other party will be construed
      as a waiver of any right or remedy with respect to such noncompliance or breach.
      All waivers shall be in writing and signed by the party to be charged therewith.
      

     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

     

              (h)
      Amendment.
      This
      Agreement may be amended, modified or supplemented only by a writing executed
      by
      Executive and the Chairman, President or CEO of the Company. 

     

              (i)
      Counterparts.
      This
      Agreement may be executed in several counterparts, each of which shall be deemed
      an original, but all of which shall constitute one and the same instrument.
      

     

              (j)
      Entire
      Agreement.
      This
      Agreement and Schedule I hereto are the only agreement and understanding
      between the parties, and supersedes all prior and contemporaneous agreements,
      summaries of agreements, descriptions of compensation packages, discussions,
      negotiations, understandings, representations or warranties, whether verbal
      or
      written, between the parties pertaining to such subject matter. 

     

              (k)
      Authority.
      The
      Company hereby represents and warrants to the Executive that the Company has
      full corporate power and authority to execute and deliver this Agreement and
      to
      perform the transactions contemplated hereby and thereby. The execution,
      delivery, and performance by the Company of the Agreement have been duly
      authorized and approved by all requisite corporate action on the part of the
      Company. 

     

              (l)
      Attorney
      Fees.
      The
      Company hereby agrees to reimburse the Executive up to ten thousand dollars
      ($10,000) for all reasonable legal fees and costs incurred by the Executive
      in
      the negotiation and preparation of this Agreement regardless of whether this
      

     

    ///
      

     

    ///
      

     

    ///
      

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

     

    Agreement
      is executed by the parties. 

     

         10. Effective
      Date.
      The
      parties agree that the Effective Date shall be August                     ,
      2007,
      or on the date as soon thereafter as the Board approves this Agreement.


     

    Agreed
      to: 

     

    
      	
              Executive:

            	
               

            	
              XCORPOREAL,
                INC.

            
	
               

            	 	 	 	 
	
               
                

            	
               

            	
              By:

            	
               

            	
               

            
	
              
                Robert
                  Weinstein 

              

            	
               

            	
               

            	
               

            	
              
                Daniel
                  S. Goldberger

                
                  President
                    & Chief Operating
                    Officer

                

              

            


    

     

    BOARD
      APPROVAL DATE: August 10, 2007 

     

    
      
         

      

      
        12