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): July 3, 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))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

Emerging Growth Company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

☐

ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

On July 3, 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 Agreement to Waive Second Closing Deliverables (the “Second Waiver”) 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”), a copy of which is attached to this Current Report as Exhibit 10.1, amending the Interest Contribution Agreement (the “Contribution Agreement”) entered into with the Contributor Parties on March 31, 2017.

Under the Contribution Agreement, in a mandatory closing to take place no later than December 31, 2017, the Contributor Parties were to contribute to the Acquiror their 100% ownership interest in a private hotel that is currently undergoing renovations to convert to a Wyndham Garden Hotel, located in Amarillo, Texas (the “Amarillo Hotel”), which has an appraised value of approximately $16 million and an outstanding loans of approximately $10.6 million. Certain closing conditions were required to be met by the Contributor Parties before contributing the property to the Acquiror, including the resolution of a lawsuit concerning ownership of the property. The Contributor Parties have received an offer to purchase the Amarillo Hotel from a non-related third party.

Pursuant to the terms and conditions of the Second Waiver, the Company and the Acquiror agreed to waive the requirement for the Contributor Parties to contribute to the Acquiror their 100% ownership interest in the Amarillo Hotel, and to accept in its place a contribution in cash of not less than $5.89 million from the Contributor Parties from the sale proceeds of the Amarillo Hotel, after the satisfaction of the outstanding loan, provided that the sale is completed and closed upon not later than August 31, 2017. In exchange the Contributor Parties shall receive shares of stock in the Company, such amount to be calculated as set forth in the Second Waiver. If the sale of the Amarillo Hotel is not completed and closed by August 31, 2017, the waiver of the requirement for the contribution of the interest in the Amarillo Hotel will lapse.

Forward-Looking Statements

This Current Report on Form 8-K may contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainty. Such statements are based on management’s current expectations and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. Investors are cautioned that there can be no assurance actual results or business conditions will not differ materially from those projected or suggested in such forward-looking statements as a result of various factors. Forward looking statements include, but are not limited to, statements with respect to the plans, strategies and objectives of management for future operations; product development, extensions and marketing; and expectations, beliefs or assumptions underlying any of the foregoing. The important factors that could cause actual results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to, changes in consumers’ spending habits and the marketability of certain products. Please refer to the risks detailed from time to time in the reports we file with the SEC, including our Annual Report on Form 10-K for the year ended December 31, 2016, as well as other filings on Form 10-Q and periodic filings on Form 8-K, for additional factors that could cause actual results to differ materially from those stated or implied by such forward-looking statements. We disclaim any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, unless required by law.

Item 9.01. Financial Statements and Exhibits.

Exhibits

10.1 Agreement to Waive Closing Deliverables dated as of July 3, 2017

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: July 10, 2017	By:	/s/ Suneet Singal
		Suneet Singal
		Chief Executive Officer

EX-10.1

Exhibit 10.1

AGREEMENT TO WAIVE CLOSING DELIVERABLES

AGREEMENT TO WAIVE CLOSING DELIVERABLES, dated as of July 3, 2017 (the “Agreement”), by and among First Capital Real Estate Operating Partnership, L.P., a Delaware limited partnership (“Contributor”), First Capital Real Estate Trust Incorporated, a Maryland corporation, (the “Contributor Parent” and, together with Contributor, the “Contributor Parties”), FC Global Realty Operating Partnership, LLC, a Delaware limited liability company (“Acquiror”), and PhotoMedex, Inc., a Nevada corporation (“Acquiror Parent” and, together with Acquiror, the “Acquiror Parties”). Each of the Contributor Parties and each of the Acquiror Parties is referred to herein individually as a “Party” and, collectively, as the “Parties.”

RECITALS

A.The Parties entered onto that certain Interest Contribution Agreement, dated as of March 31, 2017, as supplemented by that certain Agreement to Waive Closing Deliverables, dated May 17, 2017 (collectively, the “Contribution Agreement”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Contribution Agreement.

B.Under the Contribution Agreement, in a Mandatory Entity Interest Closing to take place no later than December 31, 2017, the Contributor Parties were to contribute to the Acquiror their 100% ownership interest in Amarillo, a private hotel that is currently undergoing renovations to convert to a Wyndham Garden Hotel, located in Amarillo, Texas, which has an appraised value of approximately $16 million and an outstanding loan of approximately $10.6 million. The Mandatory Contribution Conditions specified in Section 9.2(e)(ii) of the Contribution Agreement, among other Mandatory Entity Interest Closing conditions, were required to be met by the Contributor Parties before contributing Amarillo to the Acquiror, including the resolution of a lawsuit concerning ownership of Amarillo.

C. The Contributor Parties have received an offer to purchase Amarillo from an unaffiliated third party, and have proposed that in lieu of contributing Amarillo, they contribute the cash proceeds from the sale of the property after the satisfaction of the outstanding loan, which proceeds must be equal to at least $5.89 million (the “Amarillo Cash Proceeds”); provided that the sale of Amarillo to such third party is completed no later than August 31, 2017.

D.The Acquiror Parties agree to waive the Mandatory Entity Interest Closing conditions other than those that will occur at the Mandatory Entity Interest Closing for Amarillo and accept the Amarillo Cash Proceeds in lieu of Amarillo in exchange for a number of Transaction Shares that is equal to the actual amount of Amarillo Cash Proceeds received by the Acquiror divided by the Per Share Value (the “Amarillo Transaction Shares”).

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises herein contained, the Parties hereto, intending to be legally bound, hereby agree as follows:

1. Waiver.

Pursuant to Section 9.2(f)(iii) of the Contribution Agreement, the Acquiror Parties hereby agree to waive Mandatory Entity Interest Closing conditions other than those that will occur at the Mandatory Entity Interest Closing for Amarillo and to accept the Amarillo Cash Proceeds in lieu of Amarillo; provided that the Cash Proceeds are equal to at least $5.89 million and, provided, further, that the Cash Proceeds are received by the Acquiror no later than August 31, 2017. In consideration for the Amarillo Cash Proceeds, the Acquiror Parent will issue to the Contributor Parties the Amarillo Transaction Shares.

2. Miscellaneous.

Except as modified and supplemented hereby, the Contribution Agreement remains unmodified and in full force and effect. Facsimile execution and delivery of this Agreement is legal, valid and binding execution and delivery for all purposes. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns. This Agreement (including the matters referred to herein) constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they related in any way to the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the Parties hereto. No waiver by the Acquiror Parties of any default, misrepresentation, or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. Each of the Parties will bear his or its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby. The Contributor Parties acknowledge and agree that the Acquiror Parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, the Contributor Parties agree that the Acquiror Parties shall be entitled to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction over the Contributor Parties and the matter, in addition to any other remedy to which they may be entitled, at law or in equity.

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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first set forth above.

CONTRIBUTOR:

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

CONTRIBUTOR PARENT:

FIRST CAPITAL REAL ESTATE TRUST INCORPORATED

By: /s/ Suneet Singal      

Name: Suneet Singal

Title: Chief Executive Officer

ACQUIROR:

FC GLOBAL REALTY OPERATING PARTNERSHIP, LLC

By: /s/ Dr. Bob Froehlich      

Name: Dr. Bob Froehlich

Title: Chairman of the Board of Directors

ACQUIROR PARENT:

PHOTOMEDEX, INC

By: /s/ Dr. Bob Froehlich      

Name: Dr. Bob Froehlich

Title: Chairman of the Board of Directors