8-K

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): June 22, 2017

 

PhotoMedex, Inc.

(Exact Name of Registrant Specified in Charter)

Nevada	0-11635	59-2058100
(State or Other	(Commission File	(I.R.S. Employer
Jurisdiction of	Number)	Identification No.)
Incorporation)

2300 Computer Drive, Building G, Willow Grove, PA	19090
(Address of Principal Executive Offices)	(Zip Code)

Registrant’s telephone number, including area code:   215-619-3600

100 Lakeside Drive, Suite 100, Horsham, PA 19044

(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: 

¨ 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))

ITEM 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS

On June 26, 2017, PhotoMedex, Inc. (NASDAQCM and TASE “PHMD”, hereinafter referred to as the “Company”) and its subsidiary FC Global Realty Operating Partnership, LLC, a Delaware limited liability company (the “Acquiror” and, together with the Company, the “Acquiror Parties”) entered into an Assignment and Assumption Agreement with First Capital Real Estate Operating Partnership, L.P., a Delaware limited partnership (the “Contributor”), and First Capital Real Estate Trust Incorporated, a Maryland corporation (the “Contributor Parent” and, together with Contributor, the “Contributor Parties”), pursuant to which the Acquiror completed the acquisition of a 17.9133% interest in a limited liability company which owns property located in Los Lunas, New Mexico being developed as a single family residential development (the “Avalon Property”) in connection with the Interest Contribution Agreement (the "Contribution Agreement") entered into among the Acquiror Parties and the Contributor Parties on March 31, 2017.

As described in a Form 8-K, Current Report, filed on May 17, 2017, pursuant to the terms and conditions of an Agreement to Waive Closing Deliverables by and among the Parties dated as of May 17, 2017, the Contributing Parties agreed to deliver the Avalon Interest to the Acquiror, in up to two installments (the “Installments”), on or before the thirtieth (30th) calendar day following the Initial Closing (the “Delivery Deadline”), with the first of the Installments, a 6% interest in the Avalon Property, being delivered to the Acquiror as soon as practicable following the Initial Closing but in any event prior to the Delivery Deadline. The Company’s Board of Directors subsequently extended the Delivery Deadline to June 27, 2017. Notwithstanding that the Contributor did not complete the transfer of the Avalon Interest to the Acquiror at the Initial Closing, the Parties agreed that the Acquiror would be entitled to all economic benefits of ownership of the Avalon Interest (as if the Acquiror were the Contributor) from and after the date of the Initial Closing.

ITEM 8.01 OTHER EVENTS

On June 22, 2017, the United States District Court for the Middle District of Florida, Orlando Division, dismissed the Company and Dr. Dolev Rafaeli, its former Chief Executive Officer, from the case of Linda Andrew v. Radiancy, Inc.; Photomedex, Inc.; and Dolev Rafaeli. Ms. Andrew had filed a product liability suit alleging damages from her use of a no!no! hair device. The claims against the Company and Dr. Rafaeli were dismissed without prejudice. The Company’s subsidiary, Radiancy, Inc., remains a defendant in the suit.

On June 23, 2017, the Company and its subsidiaries, Radiancy, Inc. (“Radiancy”) and PhotoMedex Technology, Inc. (“P-Tech”), entered into a Confidential Settlement and Mutual Release Agreement (the “Settlement Agreement”) with DS Healthcare Group, Inc. (“DSKX”) and its subsidiaries, PHMD Consumer Acquisition Corp. and PHMD Professional Acquisition Corp.

As previously reported on Form 10-Q, Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the periods ending March 31, 2017, and on the Forms 10-K, Current Report, filed on April 14, 2016 and May 31, 2016, the Company and its subsidiaries had entered into Agreements and Plans of Merger and Reorganization with DSKX and its subsidiaries, under which DSKX’s subsidiaries would merge with the Company’s subsidiaries, in exchange for which DSKX would issue stock in its company to PhotoMedex. On May 27, 2016, the Company and its subsidiaries terminated the Agreements and Plans of Merger and Reorganization with DSKX and filed suit against DSKX in the United States District Court for the Southern District of New York alleging that DSKX breached certain obligations under those Merger Agreements and asserted claims for declaratory judgment, breach of contract, seeking to recover a termination fee of $3.0 million, an expense reimbursement of up to $750,000 and its liabilities and damages suffered as a result of DSKX’s failures and breaches in connection with each of the Merger Agreements.

The terms of the Settlement Agreement are confidential; the parties will dismiss the suit between them with prejudice within five (5) days.

ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS

(d) Exhibits

The following exhibits are filed herewith:

Exhibit No.	Description of Exhibit
10.1	Assignment and Assumption Agreement, dated June 26, 2017, by and between First Capital Real Estate Operating Partnership, L.P., First Capital Real Estate Trust Incorporated, FC Global Realty Operating Partnership, LLC, and PhotoMedex Inc.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this current report to be signed on its behalf by the undersigned hereunto duly authorized.

	PHOTOMEDEX, INC.
Date: June 28, 2017	By:	/s/ Suneet Singal
		Suneet Singal
		Chief Executive Officer

EX-10.1

Exhibit 10.1

ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is entered into as of the 26th day of June, 2017, by and between First Capital Real Estate Operating Partnership, L.P., a Delaware limited partnership (“Assignor”), First Capital Real Estate Trust Incorporated (“Assignor Parent” and, together with the Assignor, the “Assignor Parties”), FC Global Realty Operating Partnership, LLC, a Delaware limited liability company (“Assignee”) and PhotoMedex Inc., a Nevada corporation (“Assignee Parent” and, together with the Assignee, the “Assignee Parties”).

RECITALS

WHEREAS, the Assignor Parties and the Assignee Parties entered into an Interest Contribution Agreement dated March 31, 2017 (the “Contribution Agreement”), pursuant to which the Assignor Parties agreed to sell and transfer to Assignee Parties all of their right, title and interest in and to certain properties and entities, including a 100% membership interest in First Capital Avalon Jubilee, LLC (the “Avalon Interest”), which owns a 17.9133% membership interest in Avalon Jubilee, LLC.

WHEREAS, the Assignor Parties were unable to deliver the Avalon Interest to the Assignee at the Initial Closing (as such term is defined in the Contribution Agreement), which was held on May 17, 2017, and, as a result thereof, the Assignor Parties and the Assignee Parties entered into an Agreement to Waive Closing Deliverables dated May 17, 2017 (the “Waiver Agreement”), which waived certain conditions of the Contribution Agreement and provided for the Assignor to deliver the Avalon Interest to the Assignee on or before the thirtieth (30^th) day following the Initial Closing.

WHEREAS, the Assignee Parties have thereafter agreed to extend the date for the delivery of the Avalon Interest by the Assignor Parties until June 30, 2017, and have waived any event of default under the Contribution Agreement or the Waiver Agreement arising from the deferred delivery of the Avalon Interest.

WHEREAS, the Assignor hereby desires to transfer the Avalon Interest to the Assignee.

NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:

1. Capitalized terms used but not otherwise defined in this Agreement have the meanings given said terms in the Contribution Agreement.

2. Assignor hereby irrevocably assigns to Assignee, and Assignee hereby irrevocably accepts from Assignor, all of Assignor’s right, title and interest in and to the Avalon Interest. In order to reflect the assignment of the Avalon Interest, the Assignee Parties hereby acknowledge that they shall cause the amendment and restatement of the operating agreement or other constituent instruments of First Capital Avalon Jubilee, LLC or otherwise amend the schedule of members or equity owners to reflect Assignee as the owner of the Avalon Interest.

3. Assignee hereby irrevocably agrees to assume and perform all of the obligations of the Assignor Parties as a member of First Capital Avalon Jubilee, LLC, in the same manner and to the same extent as if the Assignee were the original member or obligor thereunder, regardless of when such obligation arose.

4. To the fullest extent permitted by law, each party shall indemnify, defend and hold harmless the other parties, their respective officers, directors, shareholders, employees, agents, representatives, consultants, and contractors from and against any and all suits, judgments, actions, liabilities, costs, penalties, fines, damages, claims and expenses (including, without limitation, reasonable attorney’s fees) arising out of, resulting from, the breach or threatened breach by the other party of its obligations hereunder.

5. Assignee Parent does hereby unconditionally and irrevocably guarantee to the Assignor Parties the payment, performance and discharge, when due, of each of the obligations of Assignee pursuant hereto.

6. Each of the parties hereto hereby represents and warrants to the other as follows:

(a) The execution, delivery and performance of this Agreement are within such party’s powers and have been duly authorized by all necessary limited liability company, corporate or other action.

(b) This Agreement constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, fraudulent transfer or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles (whether considered in a proceeding at law or in equity) and an implied covenant of good faith and fair dealing.

(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority, regulatory body or any other third party is required for the due execution, delivery and performance by each party to this Agreement.

7. This Agreement will be binding upon and will inure to the benefit of parties hereto and their respective successors and assigns.

8. Each party shall, upon the request of the other, from time to time, execute and deliver promptly to such other party all instruments and documents of further assurances or otherwise and will do any and all such acts and things as may be reasonably required to carry out the obligations of such party hereunder and to consummate the transactions contemplated hereby.

9. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument.

10. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.

11. Any one or more of the provisions in this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality and unenforceability without affecting the validity, legality and enforceability of the remaining provisions of this Agreement; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Notwithstanding anything herein to the contrary, this Assignment and Assumption Agreement relates solely to the Avalon Interest, and the agreements, commitments and obligations related thereto.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written by their respective duly authorized officers.

ASSIGNOR:

FIRST CAPITAL REAL ESTATE OPERATING PARTNERSHIP, L.P.

By: First Capital Real Estate Trust Incorporated, its general partner

By: /s/ Suneet Singal

Name: Suneet Singal

Title: Chief Executive Officer

ASSIGNOR PARENT:

FIRST CAPITAL REAL ESTATE TRUST INCORPORATED

By: /s/ Suneet Singal

Name: Suneet Singal

Title: Chief Executive Officer

ASSIGNEE:

FC GLOBAL REALTY OPERATING PARTNERSHIP, LLC

By: /s/ Dr. Robert Froehlich

Name: Dr. Robert Froehlich

Title: Chairman

ASSIGNEE PARENT:

PHOTOMEDEX, INC

By: /s/ Dr. Robert Froehlich

Name: Dr. Robert Froehlich

Title: Chairman