Xybernaut Corp – ‘8-K’ for 4/26/05

On:  Monday, 5/2/05, at 5:29pm ET   ·   For:  4/26/05   ·   Accession #:  910680-5-333   ·   File #:  0-21013

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Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                         4     23K 
 2: EX-99       Ex-99.1; Press Release Dated 4/27/05                   2     10K 
 3: EX-99       Ex-99.2; Press Release Dated 5/2/05                    2     11K 

8-K   —   Current Report
Document Table of Contents

8-K
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 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): April 26, 2005

 XYBERNAUT CORPORATION
(Exact Name of Registrant as Specified in its Charter)

DELAWARE
(State or Other Jurisdiction of Incorporation)

    0-15086                               54-1799851
(Commission File Number)                    (I.R.S. Employer  
                                          Identification Number)

(703) 631-6925
(Registrant's Telephone Number, Including Area Code)

12701 FAIR LAKES CIRCLE, FAIRFAX, VIRGINIA                   22033    
(Address of Principal Executive Offices)                  (Zip Code)

NOT APPLICABLE
 (Former Name or Former Address, if Changed Since Last Report)

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 (see General Instruction A.2. below):                      

|_|      Written communications pursuant to Rule 425 under the Securities Act   
(17 CFR 230.425)                                              

|_|      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 
CFR 240.14a-12)                                               

|_|      Pre-commencement communications pursuant to Rule 14d-2(b) under the    
Exchange Act (17 CFR 240.14d-2(b))                            

|_|      Pre-commencement communications pursuant to Rule 13e-4(c) under the    
Exchange Act (17 CFR 240.13e-4(c))                            

8-K
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ITEM 1.01         ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT                    

On April 26, 2005, Xybernaut Corporation (the "Company") entered into a         
consulting agreement with Alfred F. Fasola, Managing Principal of Boardroom     
Specialists, LLC ("Boardroom"), a consulting company with financial and         
management restructuring expertise, to advise the Company with respect to       
reducing costs, conserving cash, and restructuring and other alternatives to    
maximize shareholder value. The Company will pay Boardroom $2,500 per day, such 
fee to be paid by the Company to Boardroom on a weekly basis. The Company or    
Boardroom may terminate such agreement upon ten (10) business days prior written
notice. Such agreement contains other provisions relating to warranties and     
indemnifications of Boardroom.                                                  

ITEM 2.05         COSTS ASSOCIATED WITH EXIT OR DISPOSAL ACTIVITIES             

On April 27, 2005, the Company announced that it has decided to reduce its      
workforce by approximately 50% on a world wide basis. The Company estimates that
such work force reduction will be completed within the next thirty (30) days.   
The reduction in work force is part of an overall plan to streamline operations,
focus on core industry opportunities and cut operating costs throughout the     
Company, both in the U.S. and internationally.                                  

The Company will incur aggregate costs associated with such workforce reduction 
of approximately $100,000 in the second quarter of fiscal year 2005. Such costs 
are associated with a two (2) week severance benefit provided by the Company to 
each terminated employee, unless specifically provided for otherwise. The       
Company does not expect to incur any other costs in connection with such        
workforce reduction except as described herein.                                 

ITEM 3.01         NOTICE OF DELISTING OR FAILURE TO SATISFY A CONTINUED LISTING 
RULE OR STANDARD; TRANSFER OF LISTING       

As previously disclosed in the Company's Form 8-K, dated April 5, 2005 and filed
April 11, 2005, on April 5, 2005, the Company received notice from The Nasdaq   
Stock Market ("Nasdaq") of Nasdaq's intent to delist the Company's securities   
because the Company is in violation of Nasdaq Marketplace Rule 4310(c)(14) due  
to the Company not having filed its Annual Report on Form 10-K with Nasdaq and  
the SEC. The Company has since requested an oral hearing before Nasdaq to review
its determination. Such request for an oral hearing has suspended the delisting 
of the Company's securities until the oral hearing determination.               

On April 26, 2005, the Company received notice from Nasdaq, that, in addition to
the filing delinquency described above, the staff of Nasdaq has raised public   
interest concerns pursuant to Nasdaq Marketplace Rules 4300 and 4330(a)(3). Such
public interest concerns will be considered, in addition to the filing          
delinquency described above, at the Company's oral hearing which is scheduled   
for Thursday, May 5, 2005. Also to be considered at such oral hearing is that,  
as previously disclosed, the bid price of the Company's common stock has closed 
below the minimum $1.00 per share requirement for the stock's continued listing 
under Nasdaq Marketplace Rule 4310(c)(4). In the same notice, the staff of      
Nasdaq informed the Company that it intends to appear and participate at the    
Company's oral hearing.                                                         

A hearing memorandum, attached to the Nasdaq notice to the Company, expressed   
the following concerns which caused the staff of Nasdaq to raise public interest
concerns:                                                                       

1) Investors are currently unable to determine the current or historical        
financial status of the Company or whether the Company will be able to continue 
as a going concern.                                                             

2) Since the Company currently has no outside auditors, it is impossible to     
predict when accurate financial statements can be released.                     

3) Investors currently do not know the complete extent of the Company's internal
control failures, or whether appropriate remedial measures have been taken.     

4) Neither Edward G. Newman nor Steven S. Newman resigned their Director        
positions despite a request by the Board that they do so.                       

The staff of Nasdaq has requested that the Company address the above mentioned  
concerns at its oral hearing.                                                   

8-K
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The Company intends to appear and participate at the above referenced Nasdaq    
oral hearing. However, there can be no assurance that the Nasdaq hearing panel  
will rule favorably on behalf of the Company.                                   

ITEM 5.02         DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF     
DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS

On April 26, 2005, the Board of Directors of the Company appointed Perry L.     
Nolen as President and Chief Executive Officer of the Company. Since March 2001,
Mr. Nolen, age 51, has been President of Xybernaut Solutions, Inc., a           
wholly-owned subsidiary of the Company specializing in mobile computing         
solutions, enterprise project management, integration services and software     
development. From April 2000 to March 2001, Mr. Nolen served as Vice President  
of Xybernaut Solutions, Inc. From October 1999 to April 2000, Mr. Nolen served  
as Vice President of Selfware, Inc., a consulting company specializing in       
project management, asset management and software development, which was        
purchased by the Company in April 2000 and renamed Xybernaut Solutions, Inc.    
From April 1998 to October 1999, Mr. Nolen served as a Director of Selfware,    
Inc. During Fiscal Year 2004, Xybernaut Solutions, Inc. made payments to Mr.    
Nolen in the aggregate amount of approximately $220,000. Such amount was        
comprised of a base salary, car allowance and bonus for services rendered by Mr.
Nolen as President of Xybernaut Solutions, Inc. In addition, during Fiscal Year 
2004, Mr. Nolen exercised options, granted to him by the Company, to purchase   
and subsequently sell 15,000 shares of the common stock of the Company. Such    
sale of common stock provided gross proceeds to Mr. Nolen of approximately      
$18,800. During Fiscal Year 2005, Mr. Nolen has received, through April 30,     
2005, approximately $64,500 in base salary from Xybernaut Solutions, Inc. for   
services rendered by Mr. Nolen as President of Xybernaut Solutions, Inc.        

ITEM 8.01         OTHER EVENTS                                                  

On April 27, 2005, the Company issued a press release relating to, among other  
things, certain of the information contained in Items 1.01, 2.05, and 5.02 of   
this Form 8-K, a copy of which is filed as Exhibit 99.1 to this Form 8-K.       

On May 2, 2005, the Company issued a press release relating to, among other     
things, certain of the information contained in Item 3.01of this Form 8-K, a    
copy of which is filed as Exhibit 99.2 to this Form 8-K.                        

ITEM 9.01         FINANCIAL STATEMENTS AND EXHIBITS                             

(c)  Exhibits                                                                   

99.1     Press Release of the Company, dated April 27, 2005   
99.2     Press Release of the Company, dated May 2, 2005      

8-K
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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, thereunto duly authorized on May 2, 2005.                          

                                     XYBERNAUT CORPORATION

                                       By: /s/ Bruce C. Hayden
                                                    ----------------------------
                                         Bruce C. Hayden
                                                   Senior Vice President and
                                                 Chief Financial Officer

Date: May 2, 2005                                                               

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘8-K’ Filing		Date		First		Last			Other Filings
		5/5/05		2					8-K
Filed on:		5/2/05		3		4
		4/30/05		3
		4/27/05		2		3
For Period End:		4/26/05		1		3
		4/11/05		2					8-K
		4/5/05		2					8-K,  8-K/A
									List all Filings