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 19, 2010
XCORPOREAL,
INC.
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
|
001-33874
|
75-2242792
|
|
(State
or other jurisdiction of
incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
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:
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
1.01 Entry
into a Material Definitive Agreement
Asset
Purchase Agreement Amendment No. 2
On March 19, 2010, Xcorporeal,
Inc. (the “Company”), a Delaware corporation, Xcorporeal Operations, Inc.,
a Delaware corporation and a wholly owned subsidiary of the Company
(“Operations”), National Quality Care, Inc., a Delaware corporation (“NQCI”, and
collectively with the Company and Operations, the “Sellers”), and Fresenius USA,
Inc. (the “Purchaser”), a Massachusetts corporation and a wholly owned
subsidiary of Fresenius Medical Care Holdings, Inc., entered into Amendment
No. 2 (the “Amendment”) to the Asset Purchase Agreement, dated December 14, 2009
and amended February 8, 2010 (the “APA”), by and among the Sellers and the
Purchaser. The Amendment provides that the consent of Technion
Research and Development Foundation and certain other parties would not be
required deliverables for purposes of consummating the transactions contemplated
by the APA.
The Amendment is attached as
Exhibit 10.1 to this Current Report on Form 8-K. A copy of the
APA was filed as Exhibit 2.1 to the Company’s Current Report on
Form 8-K filed with the Securities and Exchange Commission (the “SEC”)
on December 18, 2009 and a copy of Amendment No. 1 to the APA was filed as
Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on
February 12, 2010. The summary of the terms of the Amendment and the
APA herein is qualified in its entirety by reference to the complete text
of the Amendment and the APA and the Amendment and the APA are incorporated by
reference herein.
Liquidating
Trust Agreement
On March 25, 2010, the Company,
Operations, and XCRLT, LLC, a Delaware limited liability company, as Trustee,
the sole member of which is Kelly J. McCrann, the Company’s Chairman and CEO,
entered into a Liquidating Trust Agreement (the "Liquidating Trust Agreement")
in connection with the formation of the Xcorporeal, Inc. Liquidating Trust
(the "Liquidating Trust"). The Liquidating Trust Agreement was executed
and the Liquidating Trust was formed for the purpose of completing the
liquidation and dissolution of the Company. In accordance with the
Company’s Plan of Liquidation and Operations’ Plan of Liquidation (each term as
defined below), the Company and Operations transferred all of their
assets remaining after the consummation of the transactions contemplated by
the APA, including rights to certain payments under the APA (the “Remaining
Assets”), and all of its liabilities and obligations not satisfied prior to
its dissolution (the “Remaining Liabilities”), to the Liquidating
Trust to be held, administered and distributed by the Trustee (as defined
below) in accordance with the provisions of the Liquidating Trust Agreement for
the benefit of the Company’s stockholders.
XCRLT, LLC will serve as the Trustee
(the "Trustee") of the Liquidating Trust. The Trustee will receive ten
percent of the aggregate Royalty Payments (as defined in the APA) up to
$10,000,000 received by the Liquidating Trust pursuant to the terms of the APA,
and five percent of the aggregate distributions to Beneficiaries (as defined in
the Liquidating Trust Agreement) in excess of $10,000,000 received by the
Liquidating Trust pursuant to the terms of the APA.
The existence of the Liquidating Trust
will terminate upon the earliest of: (i) such time as termination is required by
the applicable laws of the State of Delaware; (ii) the final distribution of all
the Trust Assets (as defined in the Liquidating Trust Agreement) pursuant to
Section 5.9 of the Liquidating Trust Agreement; and (iii) the expiration of a
period of three years from March 25, 2010; provided that the Trustee, in its
discretion, may extend the termination of the Liquidating Trust pursuant to
subparagraph (iii) to such later date as it may designate, if it determines that
an extension is reasonably necessary to fulfill the purpose of the Trust, and,
prior to such extension, the Trustee shall have requested and received no-action
assurance from the SEC regarding the registration and reporting requirements of
the Liquidating Trust under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other
applicable Federal securities act.
The Liquidating Trust Agreement is
attached as Exhibit 10.2 to this Current Report on Form 8-K. The
summary of the terms of the Liquidating Trust Agreement is qualified in its
entirety by reference to the complete text of the Liquidating Trust Agreement
and the Liquidating Trust Agreement is incorporated by reference
herein.
Assignment
and Assumption of Liabilities and Assets Agreement
In addition to the Liquidating Trust
Agreement, the Company entered into that certain Assignment and Assumption of
Liabilities and Assets Agreement, dated as of March 25, 2010 (the “Assignment
and Assumption Agreement”), by and among the Company, Operations, and the
Liquidating Trust, pursuant to which the Company and Operations transferred the
Remaining Assets and Remaining Liabilities to the Liquidating Trust as provided
for under the Liquidating Trust Agreement.
The Assignment and Assumption Agreement
is attached as Exhibit 10.3 to this Current Report on Form 8-K. The
summary of the terms of the Assignment and Assumption Agreement is qualified in
its entirety by reference to the complete text of the Assignment and Assumption
Agreement and the Assignment and Assumption Agreement is incorporated by
reference herein.
Item
2.01 Completion
of Acquisition or Disposition of Assets
Asset
Purchase Agreement
On December 14, 2009, the Company
entered into the APA, by and among the Sellers and the Purchaser, for the sale
of substantially all of the assets of the Sellers to the Purchaser for an
aggregate cash purchase price of $8,000,000 and certain Royalty Payments (as
defined in the APA).
On March 19, 2010, the Company
completed the transactions contemplated by the APA and transferred substantially
all of its assets to the Purchaser. The Company’s net aggregate cash
proceeds from the sale of substantially all of its assets will be an aggregate
amount equal to $2,300,000 (including the exclusivity fee previously paid by
Purchaser to the Company) payable on the following dates: exclusivity fee in the
amount of $200,000 previously paid to the Company; $1,650,000 paid on March 19,
2010; $375,000 on April 1, 2010; and $75,000 on April 1, 2011. In
addition, as provided under the APA, the Company is entitled to receive Royalty
Payments pursuant to the terms of the APA.
Plan
of Liquidation and Dissolution
On February 4, 2010, the Board of
Directors of the Company adopted the Plan of Liquidation and Dissolution of
Xcorporeal, Inc. (the “Plan of Liquidation”), subject to the approval of the
stockholders of the Company and the consummation of the transactions
contemplated by the APA, to accomplish the dissolution of the Company in
accordance with Section 275 and other applicable provisions of the General
Corporation Law of the State of Delaware (the “DGCL”). On March 15,
2010, the stockholders of the Company approved the APA, the Liquidating Trust
Agreement and the Plan of Liquidation, and on March 19, 2010, the transactions
contemplated by the APA were consummated. On March 12, 2010, the
Board of Directors of Operations and the Company as the sole stockholder of
Operations adopted the Plan of Liquidation of Xcorporeal Operations, Inc. (the
“Operations Plan of Liquidation”), subject to the consummation of the
transactions contemplated by the APA, to accomplish the dissolution of
Operations in accordance with Section 275 and other applicable provisions of the
DGCL. On March 25, 2010, (i) the Company and Operations each filed a
Certificate of Dissolution with the Secretary of State of Delaware; (ii) the
Company’s stock transfer books were closed as of the close of business and (iii)
in accordance with the Company’s Plan of Liquidation, Operations Plan of
Liquidation and the Liquidating Trust Agreement, which were previously approved
by the Company’s stockholders and Operations’ sole stockholder, as applicable,
the Company and Operations transferred the Remaining Assets and Remaining
Liabilities to the Liquidating Trust.
The Company and Operations will begin
the process of liquidating and dissolving in accordance with applicable
Delaware law. The Company will file a Certificate and Notice of
Termination of Registration on Form 15 with the SEC for the purpose of
deregistering its securities under the Exchange Act. As a result, the
Company will no longer be a public reporting company and its securities will
cease trading on the Pink Sheets Electronic OTC Market.
The Plan of Liquidation was attached as
Exhibit B to the Company’s Definitive Proxy Statement, as filed with the SEC on
February 16, 2010 (the “Proxy Statement”). The Operations Plan of
Liquidation is attached as Exhibit 2.1 to this Current Report on Form
8-K. The summary of the terms of the Plan of Liquidation and
Operations Plan of Liquidation is qualified in its entirety by reference to the
complete text of the Plan of Liquidation as attached to the Company’s Proxy
Statement and the Operations Plan of Liquidation attached herein, and the Plan
of Liquidation and Operations Plan of Liquidation are incorporated by reference
herein.
|
Item
9.01
|
Financial
Statements and Exhibits.
|
|
|
2.1
|
Plan
of Liquidation and Dissolution of Xcorporeal Operations,
Inc.
|
|
|
10.1
|
Amendment
No. 2, dated as of March 19, 2010, to Asset Purchase Agreement, dated as
of December 14, 2009 and amended on February 8,
2010.
|
|
|
10.2
|
Liquidating
Trust Agreement, dated as of March 25, 2010, by and among the Xcorporeal,
Inc., Xcorporeal Operations, Inc., and XCRLT, LLC, as
Trustee.
|
|
|
10.3
|
Assignment
and Assumption of Liabilities and Assets Agreement, dated as of March 25,
2010, by and among Xcorporeal, Inc., Xcorporeal Operations, Inc., and
Xcorporeal, Inc. Liquidating Trust.
|
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:
March 25, 2010
|
|
By:
|
/s/ Robert Weinstein
|
|
|
|
|
Robert
Weinstein
|
|
|
|
|
Chief
Financial
Officer
|