AND INTERPRETATION OF THIS AGREEMENT AND THE PERFORMANCE OF THE
OBLIGATIONS IMPOSED BY THIS AGREEMENT.
11.5.
ENTIRE AGREEMENT.
THIS AGREEMENT, THE SCHEDULES AND EXHIBITS
HERETO, AND OTHER DOCUMENTS DELIVERED OR TO BE DELIVERED PURSUANT TO THIS
AGREEMENT, TOGETHER WITH THE SIDE AGREEMENT DATED AS OF THE DATE HEREOF AMONG
XCORPOREAL, OPERATIONS AND PURCHASER, CONTAIN OR WILL CONTAIN THE ENTIRE
AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREIN AND SUPERSEDE ALL PREVIOUS ORAL AND WRITTEN AGREEMENTS. THE SCHEDULES TO
THIS AGREEMENT CONSTITUTE A PART OF THIS AGREEMENT AND ARE INCORPORATED INTO
THIS AGREEMENT FOR ALL PURPOSES AS IF FULLY SET FORTH HEREIN.
27
11.6.
WAIVER.
ANY FAILURE OF ANY SELLER OR PURCHASER TO COMPLY WITH ANY
OBLIGATION, COVENANT, AGREEMENT OR CONDITION HEREIN MAY BE WAIVED IN WRITING BY
PURCHASER OR SELLERS, RESPECTIVELY, BUT SUCH WAIVER OR FAILURE TO INSIST UPON
STRICT COMPLIANCE WITH SUCH OBLIGATION, COVENANT, AGREEMENT OR CONDITION SHALL
NOT OPERATE AS A WAIVER OF, OR ESTOPPEL WITH RESPECT TO, ANY SUBSEQUENT OR OTHER
FAILURE.
11.7.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED, MODIFIED, OR
SUPPLEMENTED ONLY BY WRITTEN AGREEMENT OF PURCHASER AND EACH SELLER.
11.8.
HEADINGS.
THE SECTION AND OTHER HEADINGS CONTAINED IN THIS
AGREEMENT ARE FOR REFERENCE PURPOSES ONLY AND SHALL NOT AFFECT THE
INTERPRETATION OR MEANING OF THIS AGREEMENT.
11.9.
COUNTERPARTS.
THIS AGREEMENT SHALL BE EXECUTED IN SEVERAL
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
A SIGNATURE PAGE OF THIS
AGREEMENT EXECUTED AND TRANSMITTED VIA FACSIMILE OR ELECTRONIC MAIL SHALL BE
DEEMED AN ORIGINAL FOR ALL PURPOSES.
11.10.
FURTHER ASSURANCES.
AT ANY TIME AFTER THE CLOSING DATE, EACH SELLER
WILL, AT PURCHASER'S REQUEST AND WITHOUT FURTHER CONSIDERATION, PROMPTLY
EXECUTE, ACKNOWLEDGE AND DELIVER ANY OTHER ASSURANCES OR DOCUMENTS REASONABLY
REQUESTED BY PURCHASER IN ORDER TO COMPLETE THE CONVEYANCE OF THE PURCHASED
ASSETS.
11.11.
PAYMENT OF EXPENSES.
ALL FEES, COSTS AND EXPENSES, INCLUDING LEGAL
AND ACCOUNTING FEES, INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE PAID BY THE PARTY HERETO INCURRING
SAID FEES, COSTS OR EXPENSES.
11.12.
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT SHALL BE
DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES HERETO TO EXPRESS THEIR MUTUAL
INTENT AND NO RULE OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
11.13.
NO THIRD PARTY BENEFICIARY.
EXCEPT FOR THE XCORPOREAL TRUST, THE NQCI
TRUST AND THEIR SUCCESSORS AND ANY PERMITTED ASSIGNS, NO THIRD PARTY SHALL BE
DEEMED TO BENEFIT FROM THE TERMS OF THIS AGREEMENT NOR SHALL ANY SUCH THIRD
PARTY BE DEEMED A BENEFICIARY HEREOF.
[Signature Page Follows]
28
[Signature Page to Asset Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
SELLERS:
PURCHASER:
XCORPOREAL, INC.
FRESENIUS USA, INC.
By:
/s/ Kelly McCrann
By:
/s/ Mohsen Reihany
Name:
Kelly McCrann
Name:
Mohsen Reihany
Its:
Chairman and CEO
Its:
Senior Advisor to Chairman of the Board
XCORPOREAL OPERATIONS, INC.
By:
/s/ Kelly McCrann