UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________________________________________________
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
___________________________________________________________________
Date of
Report (Date of earliest event reported):
March
15
, 2010
XCORPOREAL,
INC.
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
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001-33874
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75-2242792
|
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(State
or other jurisdiction of
incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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80
Empire Drive, Lake Forest, CA 92630
(Address
of principal executive offices) (Zip Code)
(949)
600-4640
(Registrant's
telephone number, including area code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR
240.13e-4(c))
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Entry
into a Material Definitive
Agreement
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In
connection with the sale of substantially all of the assets of Xcorporeal, Inc.,
a Delaware corporation (the “Company”), approved by the stockholders of the
Company at the Special Meeting (as defined below) described in Item 5.07 of this
Current Report on Form 8-K, the Company and Dr. Victor Gura, the Company’s Chief
Medical and Scientific Officer, have entered into the Gura Agreement (as defined
below) that provides Dr. Gura with certain payments and benefits, as more fully
described in Item 5.02(e) on this Current Report on Form 8-K.
In
addition, in connection with the Company entering into the Gura Agreement, the
Company also entered into a Settlement Agreement and Material Release (the “SMRH
Agreement”), to satisfy Dr. Gura’s and the Company’s payment obligation for
certain legal services rendered by Sheppard Mullin Richter & Hampton LLP
(“SMRH”) to Dr. Gura. Such payment obligation by the Company to SMRH
on Dr. Gura’s behalf arose pursuant to the terms of that certain Indemnification
Agreement (the “Indemnification Agreement”), dated as of October 13, 2006,
between the Company and Dr. Gura.
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Item
1.02
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Termination
of a Material Definitive Agreement
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Dr.
Gura’s Employment Agreement, dated as of November 30, 2006, shall be terminated
as described in Item 5.02(e) below by Dr. Gura’s resignation from his position
as Chief Medical and Scientific Officer of the Company, effective as of the date
of Closing (as defined below).
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Item
4.01
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Changes
in Registrant’s Certifying
Accountant.
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On March
17, 2010, the Company was notified by BDO Seidman, LLP (“BDO Seidman”), its
independent registered public accounting firm, that BDO Seidman is resigning as
the Company’s independent registered public accounting firm effective
immediately. Except as set forth herein, BDO Seidman’s report on the
Company’s financial statements for the past two fiscal years ended December 31,
2008 and December 31, 2007, did not contain an adverse opinion or a disclaimer
of opinion, and was not qualified or modified as to uncertainty, audit scope or
accounting principles. However, their report contained an explanatory
paragraph disclosing the uncertainty regarding the ability of the Company to
continue as a going concern.
During
the two most recent fiscal years ended December 31, 2009 and December 31, 2008,
the Company did not have any disagreements with BDO Seidman on any matter of
accounting principles or practices, financial statement disclosure or auditing
scope or procedure, which disagreement(s), if not resolved to the satisfaction
of BDO Seidman, would have caused it to make reference to the subject matter of
this disagreement(s) in connection with its report.
The
Company requested BDO Seidman to furnish it a letter addressed to the Securities
and Exchange Commission stating whether it agrees with the above
statements. A copy of the BDO Seidman letter is filed as Exhibit 16.1
to this Form 8-K.
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Item 5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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(e) Material Compensatory Plan, Contract or
Arrangement
On March
15, 2010, the Company and Dr. Gura entered into a Confidential Settlement
Agreement and Release (the “Gura Agreement”) with respect to the termination of
Dr. Gura’s employment with the Company on the date of closing of the
transactions contemplated by the APA (as defined below) (the
“Closing”). The Agreement sets forth, among other things, certain
payments to be made to Dr. Gura as a result of such termination.
Pursuant
to the Agreement, Dr. Gura shall receive a severance payment in the amount of
$200,000 (the “Payment”). The Company shall pay on Dr. Gura’s behalf
$150,000 to SMRH in consideration for certain legal services provided to Dr.
Gura by SMRH (the “SMRH Payment”). The SMRH Payment shall satisfy the
Company’s obligations to pay certain indemnification expenses of Dr. Gura as
agreed to under the Indemnification Agreement, between the Company and Dr. Gura,
which includes all obligations of Dr. Gura to SMRH. The Payment shall
be paid by the Company to Dr. Gura within two business days after the date of
the Closing. The SMRH Payment shall be made as provided under the
SMRH Agreement among the Company, Dr. Gura and SMRH.
Under the
Gura Agreement, Dr. Gura has also agreed to release the Company from all claims
through the date of the Closing and the Company has agreed to release Dr. Gura
from all claims based on Dr. Gura’s employment with the Company through the date
of Closing; provided, however, that the release shall not extend to Dr. Gura’s
coverage under the Company’s existing directors’ and officers’ liability
insurance. Under the SMRH Agreement, SMRH, on the one hand, and Dr.
Gura and the Company, on the other hand, agreed to release each other from all
claims of any nature whatsoever.
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Item
5.07
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Submission
of Matters to a Vote of Security
Holders.
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Results
of Special Meeting of Stockholders
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(a)
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At
11:00 a.m. on March 15, 2010, the Company held a special meeting of its
stockholders at the offices of Kaye Scholer LLP, 1999 Avenue of the Stars,
Suite 1700, Los Angeles, California 90067-6048 (the “Special
Meeting”).
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(b)
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The
issued and outstanding shares of common stock, $0.0001 par value per share
(the “Common Stock”), of the Company entitled to vote at the Special
Meeting consisted of 15,354,687 shares of Common Stock. The
stockholders of the Company voted on three matters at the Special Meeting,
all three of which were approved pursuant to the following final voting
results from the Special Meeting:
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(1)
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A
proposal to approve the sale of substantially all of the assets
of the Company (the “Asset Sale”) pursuant to an Asset Purchase
Agreement (as amended, the “APA”), by and among Fresenius USA, Inc., a
Massachusetts corporation and a wholly-owned subsidiary of Fresenius
Medical Care Holdings, Inc., the Company, Xcorporeal Operations, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Company,
and National Quality Care, Inc., a Delaware corporation, dated as of
December 14, 2009, as amended on February 8,
2010.
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FOR
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AGAINST
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ABSTAIN
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BROKER
NON-VOTES
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9,027,545
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432,060
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9,434
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955,426
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(2)
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A
proposal to approve the voluntary liquidation and dissolution of the
Company pursuant to a Plan of Liquidation (as defined in the
APA).
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FOR
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AGAINST
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ABSTAIN
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BROKER
NON-VOTES
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9,170,974
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290,608
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7,457
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955,426
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(3)
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A
proposal to approve the adoption of the Liquidating Trust Agreement (as
defined in the APA).
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FOR
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AGAINST
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ABSTAIN
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BROKER
NON-VOTES
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9,171,374
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290,606
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7,059
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955,426
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Item 9.01
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Financial
Statements and Exhibits.
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16.1
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Letter
from BDO Seidman, dated as of March 17, 2010, regarding change in
certifying accountant.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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XCORPOREAL,
INC.
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Date:
March 19, 2010
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By:
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/s/
Robert
Weinstein
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Robert
Weinstein
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Chief
Financial Officer
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