Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________________________________________________
FORM
8-K/A
(Amendment
No. 1)
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
___________________________________________________________________
Date
of
Report (Date of earliest event reported): June
9, 2008
XCORPOREAL,
INC.
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
|
0-18718
|
75-2242792
|
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
12121
Wilshire Blvd., Suite 350, Los Angeles, California 90025
(Address
of principal executive offices) (Zip Code)
(310)
923-9990
(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:
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR
240.13e-4(c))
| Item
7.01. |
Regulation
FD Disclosure
|
As
previously reported, on June 9, 2009, the arbitrator in the arbitration
proceeding between our wholly-owned subsidiary, Xcorporeal Operations, Inc.
(Operations), and National Quality Care, Inc. (National) issued an Interim
Award. The Interim Award states that it is an interim award subject to further
proceedings, and is not intended to be a final award subject to a motion
to
confirm before a court of competent jurisdiction. We do not believe it would
be
likely to have a material adverse impact on our long term business
plans.
On
June
10, 2008, National issued a current report on Form 8-K, which incorrectly
stated
that the License Agreement has been terminated in advance of the Technology
Transaction. The License Agreement will remain in full force and effect unless
and until the Technology Transaction closes.
The
Interim Award states: “Under all the circumstances the appropriate relief is an
award requiring specific performance of the Technology Transaction.” The
arbitrator stated that “further evidence will be required to implement the award
of specific performance,” including “what conditions, if any, remain to be
performed before the Technology Transaction can be closed.” Subject to
National’s satisfaction of any yet-unfilled conditions, the arbitrator intends
to supervise the Closing of the transaction. The Interim Award further states:
“Xcorporeal’s need for a permanent, non-contingent interest in the Technology
would be satisfied by the Technology Transaction.”
Section
6.B(1) of the Merger Agreement provides that, at the Closing of the Technology
Transaction, National “shall absolutely, unconditionally, validly and
irrevocably sell, transfer, grant and assign to [Operations] all of the
Technology, including, but not limited to, the sole and exclusive right,
in
perpetuity and throughout the Territory, to use, improve, expand and otherwise
exploit the Technology, to make (and have made), use, and sell the Licensed
Products, and otherwise to practice the inventions and the art that is embodied
or described in the Licensor Patents, the Licensor Patent Applications, and
any
improvements thereto made in whole or in part by Licensor (whether or not
patented) in connection with the Technology (each such capitalized term as
defined in the License Agreement).”
The
Interim Award states that the total aggregate shares of Operations stock
to be
received by National at the Closing equals 48% of all Operations shares
outstanding as of the date of the Merger Agreement. On September 1, 2006,
there
were 10,000,000 shares of Operations common stock outstanding. The Interim
Award
further states that, if Operations “is no longer a public company,” then
National “must receive” shares of our stock “to effectuate the intent of the
Technology Transaction.” However, we believe based upon advice of counsel that
an arbitrator has no power to determine rights and obligations of one who
is not
a party to the arbitration agreement, including a parent corporation not
in
contractual privity. A court of law must first determine the status of the
nonsignatory against whom arbitration is sought. No such order has been
sought.
The
Interim Award’s grant of specific performance of the Technology Transaction was
unanticipated by us, because both parties have previously stated publicly
that
the Merger Agreement has been terminated, and National had not asserted claims
for specific performance. If a court were to order us bound as a party to
the
arbitration, and the arbitrator were to issue a final award requiring us
to
issue shares of our common stock that were upheld on appeal, the interests
of
our current stockholders could be substantially diluted.
Copies
of
the Merger Agreement and License Agreement are attached hereby as Exhibits
2.1
and 10.1, respectively.
Unless
otherwise required by law, we disclaim any obligation to release publicly
any
updates or any changes in its expectations or any change in events, conditions,
or circumstances on which any forward-looking statements are
based.
| Item
9.01 |
Financial
Statements and Exhibits.
|
(d)
Exhibits.
|
No.
|
|
Description
|
|
2.1
|
|
Merger
Agreement dated as of September 1, 2006 between National Quality
Care, Inc. and Xcorporeal Operations, Inc. f/k/a Xcorporeal,
Inc.
|
| |
|
|
|
10.1
|
|
License
Agreement dated as of September 1, 2006 between National Quality
Care, Inc. and Xcorporeal Operations, Inc. f/k/a Xcorporeal,
Inc.
|
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.
| |
|
|
| |
XCORPOREAL,
INC. |
|
|
|
| Date:
June
11,
2008 |
By: |
/s/ ROBERT
WEINSTEIN
|
| |
Robert Weinstein |
| |
Chief
Financial Officer
|