UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

_____________

FORM 8-K/A

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): January 26, 2015

PhotoMedex, Inc.

(Exact Name of Registrant Specified in Charter)

 

 

 

 

 

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

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:

      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))

 

 

 

---

 

 

Explanatory Note

This amendment to the Form 8-K filed on January 30, 2015 (the "Original 8-K") is being filed to correct the "Date of report" on the cover page of such 8-K.  The Original 8-K incorrectly reported the "Date of report" as November 4, 2014, and this amendment corrects the "Date of report" to January 26, 2015.  Additionally, this amendment also corrects a typo in the disclosure in Item 1.01.

 

On November 4, 2014, PhotoMedex, Inc. ("PHMD") and its subsidiaries Radiancy, Inc.; LCA-Vision, Inc.; PhotoMedex Technology, Inc.; and Lumiere, Inc. (collectively, the "Company"), entered into an Amended and Restated Forbearance Agreement (the "Amended Forbearance Agreement") with the lenders (the "Lenders") that are parties to the Credit Agreement dated May 12, 2014, and with JP Morgan Chase ("Chase"), as Administrative Agent for the Lenders.

Under the Credit Agreement, the Company obtained $85 million in senior secured credit facilities ("the Facilities"), which included a $10 million revolving credit facility and a $75 million four-year term loan. The Credit Agreement contained financial covenants, including a maximum leverage covenant and a minimum fixed charge covenant, which the Company is required to maintain; the targets for those covenants are determined quarterly based on a rolling average of the past four quarters of financial data.  As stated in the Amended Forbearance Agreement, the Company had failed to meet both financial covenants for the fiscal quarters ending prior to December 31, 2014 (collectively, the "Specified Events of Default") and consequently is in default of the Facilities. On August 4, 2014, the Company received a notice of default and a reservation of rights from Chase and engaged a third-party independent advisor to assist the Company in negotiating a longer term solution to the defaults. The parties had entered into an initial Forbearance Agreement (the "Initial Forbearance Agreement") on August 25, 2014; information on that Initial Forbearance Agreement is available in the Form 8-K filed  by the Company on August 25, 2014.

Pursuant to the terms of the Amended Forbearance Agreement, the Lenders agreed to forbear from exercising their rights and remedies with respect to the Specified Events of Default from August 25, 2014 until February 28, 2015, or earlier if an event of default occurs (the "Forbearance Period").  The Company agreed to make prepayments on the term loan of $937,500 each on November 1 and December 1, 2014, and on January 1 and February 1, 2015, which will be applied in direct order of maturity.  The Company also agreed that, on or before the second business day after certain dates set forth in the Amended Forbearance Agreement, the Company would pay against the revolving loans an amount equal to 75% of cash-on-hand that exceeded $18 million.  In addition, the Company agreed to make a payment of $1.5 million toward the revolving loans on or before February 16, 2015.  The interest rates on the Loans under the Credit Agreement increased beginning November 1, 2014 to the CB Floating Rate plus 4.00%; an additional 2% would be added to that rate upon the occurrence and continuance of any default or event of default (other than a specified event of default).  Further information on that Amended Forbearance Agreement is available in the Form 8-K filed by the Company on November 4, 2014.

On January 26, 2015, the Company entered into a Waiver with respect to the Credit Agreement and the Amended Forbearance Agreement under which the Administrative Agent and the Lenders agreed to waive certain forbearance defaults, specifically a delay in delivery of a cash on hand certificate for the period ending January 2, 2015, the Company's non-delivery on December 17, 2014, of an indication of interest from a third party with respect to a refinancing of the Facilities, and its non-delivery on January 23, 2015 of a commitment letter for such refinancing.  The Company continues to engage in negotiations with potential lenders and to explore other options with regard to such a refinancing.  However, there is no assurance that any refinancing will occur.

The Waiver also contains customary provisions, including the Company's representation as to the absence of other defaults and requirements that the Company pay the reasonable and documented out-of-pocket costs and expenses of the Administrative Agent's counsel and advisors.

 

-2-

---

 

 

 

The foregoing description of the Waiver does not purport to be complete and is qualified in its entirety by reference to the Waiver filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Cautionary Note Regarding Forward-Looking Statements

This Current Report on Form 8-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, which are subject to the "safe harbor" created by those sections. Forward-looking statements are based on our management's beliefs and assumptions and on information currently available to our management. In some cases, you can identify forward-looking statements by terms such as "may," "will," "should," "could," "would," "expect," "plan," "anticipate," "believe," "estimate," "project," "predict," "intend," "potential" and similar expressions intended to identify forward-looking statements. These statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance, time frames or achievements to be materially different from any future results, performance, time frames or achievements expressed or implied by the forward-looking statements. We discuss many of these risks, uncertainties and other factors in our Annual Report on Form 10-K for the year ended December 31, 2013, and in our Quarterly Report on Form 10-Q for the quarters ended March 31, 2014, June 30, 2014 and September 30, 2014 under the heading "Risk Factors" in each of those reports. Given these risks, uncertainties and other factors, you should not place undue reliance on these forward-looking statements. Also, these forward-looking statements represent our estimates and assumptions only as of the date of this filing. You should read this Current Report on Form 8-K completely and with the understanding that our actual future results may be materially different from what we expect. We hereby qualify our forward-looking statements by our cautionary statements. Except as required by law, we assume no obligation to update these forward-looking statements publicly, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future. 

 

(d)            Exhibits.

10.1          Waiver dated January 26, 2015

 

 

 

 

 

-3-

---

 

 

 

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.

 

 

 

 

 

-4-

---

 

 

 

EXHIBIT INDEX

 

 

 

 

-5-

 

 

---