UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
10-KSB/A
Amendment
No. 2
x
ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF
1934 FOR THE FISCAL YEAR ENDED DECEMBER 31,
2007
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TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT
OF 1934 FOR THE TRANSITION PERIOD FROM
TO
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Commission
file number
001-31608
XCORPOREAL,
INC.
(Name
of
small business issuer in its charter)
Delaware
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75-2242792
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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12121
Wilshire Blvd., Suite 350
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Los
Angeles, California 90025
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(Address
of principal executive offices)
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(City,
State and Zip Code)
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Issuer’s
telephone number
(310)
923-9990
Securities
registered under Section 12(b) of the Exchange Act: None
Securities
registered under Section 12(g) of the Exchange Act:
Common
stock, $0.0001 par value per share
(Title
of
class)
Check
whether issuer (1) filed all reports to be filed by Section 13 or 15(d) of
the
Exchange Act during the past 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days. Yes
x
No
¨
Check
if
there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this Form, and no disclosure will be contained,
to
the best of registrant’s knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB.
¨
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes
¨
No
x
State
issuer’s revenues for its most recent fiscal year:
$0
State
the
aggregate market value of the voting and non-voting common equity held by
non-affiliates computed by reference to the price at which the common equity
was
sold, as of a specified date within the past 60 days:
$3,232,273
as of September 16, 2008
State
the
number of shares outstanding of each of the issuer’s classes of common equity,
as of the latest practicable date:
14,704,687
shares of common stock as of September 16, 2008
Transitional
Small Business Disclosure Format (Check one): Yes
¨
No
x
EXPLANATORY
NOTE
Xcorporeal,
Inc.("we," "us" or "our") is filing this Amendment No. 2 on Form 10-KSB/A to
amend our annual report on Form 10-KSB for the fiscal year ended December 31,
2007, as filed with the Securities and Exchange Commission on March 25, 2008
(the "Original Report"). The purpose of this Amendment No. 2 is to revise our
discussion of the effectiveness of our internal control over financial reporting
as of the end of the period covered by the Original Report. This Amendment
is
being filed for the purpose of responding to comments received by us from the
staff of the Securities and Exchange Commission with respect to Amendment No.
1
to Form 10-KSB filed on August 1, 2008.
As
required by Rule 12b-15 of the Securities Exchange Act of 1934, as amended,
the
complete text of Part II, Item 8A has been set forth in this Amendment No.
2
including those portions which have not been modified from the Original Report.
As a result of these modifications, the certifications pursuant to the
Sarbanes-Oxley Act of 2002, filed as exhibits to the Original Report have been
re-executed and re-filed as of the date of this Amendment No. 2.
Except
with respect to our discussion of our conclusion as to the effectiveness of
our
internal control over financial reporting as set forth in Part II, Item 8A,
we
have not modified or updated any of our prior disclosure from the Original
Report, and this Amendment No. 2 does not reflect the occurrence of any events
following the date of the Original Report. Accordingly, this Amendment No.
2
should be read in conjunction with our filings made with the Securities and
Exchange Commission subsequent to the filing of the Original Report, including
any amendments to those filings.
PART
II
Item
8A. Controls and Procedures
Disclosure
Controls and Procedures
Our
management, with the participation of our Executive Chairman and Chief Financial
Officer, conducted an evaluation of the effectiveness of our disclosure controls
and procedures as of the end of the period covered by this Annual Report
(December 31, 2007), as is defined in Rule 13a-15(e) promulgated under the
Securities Exchange Act of 1934, as amended. Our disclosure controls and
procedures are intended to ensure that the information we are required to
disclose in the reports that we file or submit under the Securities Exchange
Act
of 1934 is (i) recorded, processed, summarized and reported within the time
periods specified in the Securities and Exchange Commission’s rules and forms
and (ii) accumulated and communicated to our management, including the Executive
Chairman and Chief Financial Officer, as the principal executive and financial
officers, respectively, to allow timely decisions regarding required
disclosures.
Based
on
that evaluation, our Executive Chairman and Chief Financial Officer concluded
that, as of the end of the period covered by this Annual Report, our disclosure
controls and procedures were not effective solely due to our failure to
adequately report such officers' conclusion with respect to disclosure controls
and procedures.
Our
management has concluded that the financial statements included in this Form
10-KSB present fairly, in all material respects our financial position, results
of operations and cash flows for the periods presented in conformity with
generally accepted accounting principles.
It
should
be noted that any system of controls, however well designed and operated, can
provide only reasonable, and not absolute, assurance that the objectives of
the
system will be met. In addition, the design of any control system is based
in
part upon certain assumptions about the likelihood of future
events.
Management’s
Report on Internal Control Over Financial Reporting
Management
is responsible for establishing and maintaining adequate internal control over
our financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) of the
Exchange Act). Internal control over financial reporting is a process designed
to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with accounting principles generally accepted in the United States of
America.
Our
internal control over financial reporting includes those policies and procedures
that (i) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of our assets,
(ii) provide reasonable assurance that transactions are recorded as necessary
to
permit preparation of financial statements in accordance with accounting
principles generally accepted in the United States of America, and that our
receipts and expenditures are being made only in accordance with authorizations
of our management and directors, and (iii) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or
disposition of our assets that could have a material effect on the financial
statements.
Because
of its inherent limitations, internal control over financial reporting may
not
prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate. Our management, with the
participation of our Executive Chairman and Chief Financial Officer, conducted
an evaluation of the effectiveness of our internal control over financial
reporting based on the framework in Internal Control - Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission.
Based on this evaluation, our Executive Chairman and Chief Financial Officer
concluded that, as of the end of the period covered by this Annual Report,
our
internal control over financial reporting was effective.
There
have been no changes in our external controls over financial reporting during
our most recent fiscal quarter that have materially affected, or are reasonably
likely to materially affect our internal control over financial
reporting.
This
Annual Report does not include an attestation report of our independent
registered public accounting firm regarding internal control over financial
reporting. Management’s report was not subject to attestation by our registered
public accounting firm pursuant to temporary rules of the SEC that permit us
to
provide only management’s report in this Annual Report.
Changes
in Internal Control Over Financial Reporting
During
the year ended December 31, 2007, we made the following changes in our internal
control over financial reporting:
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In
August 2007, we appointed a Chief Financial Officer with education
and
background in accounting and finance, substantial experience as CFO
of
publicly traded companies, and adequate knowledge of financial accounting,
internal control, and generally accepted accounting
principles.
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Effective
February 2007, our board of directors formed an Audit Committee composed
of three independent directors, including a chairman who meets the
requirements as an audit committee financial expert based on his
experience and abilities.
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A
thorough review of our financial reporting structures, internal control
structures, and regulatory filings was conducted by our CFO to ensure
our
controls and procedures are adequate and
effective.
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Item
13: Exhibits
No.
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Description
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31.1
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Rule
13a-14(a) Certification of Chief Executive Officer
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31.2
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Rule
13a-14(a) Certification of Chief Financial Officer
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32.1
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Certification
of Chief Executive Officer and Chief Financial Officer Pursuant to
18
U.S.C. Section 1350, as Pursuant to Section 906 of the Sarbanes-Oxley
Act
of 2002
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SIGNATURES
Pursuant
to the requirements of the Securities and Exchange Act of 1934, the Registrant
has duly caused this report to be signed on its behalf by its duly authorized
representatives.
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XCORPOREAL,
INC.
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By:
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/s/
Terren S. Peizer
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Terren
S. Peizer
Executive
Chairman
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Title
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Pursuant
to the requirements of the Securities and Exchange Act of 1934, this report
has
been signed below by the following persons on behalf of the Registrant and
in
the capacities and on the dates indicated:
Signature
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Title(s)
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Date
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/s/
Terren
S. Peizer
Terren
S. Peizer
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Executive
Chairman of the Board of Directors
(Principal
Executive Officer)
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September
19, 2008
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Daniel
S. Goldberger
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Chief
Executive Officer and Director
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September
19, 2008
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Robert
Weinstein
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Chief
Financial Officer (Principal Financial and Accounting
Officer)
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September
19, 2008
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Marc
G. Cummins
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Director
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September
19, 2008
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Victor
Gura, M.D.
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Chief
Medical & Scientific Officer and Director
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September
19, 2008
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Kelly
McCrann
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Director
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September
19, 2008
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/s/
Hans Polaschegg, Ph.D.
Hans
Polaschegg, Ph.D.
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Director
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September
19, 2008
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Jay
A. Wolf
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Director
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September
19, 2008
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