Long-Term Obligations | 8. Long-Term Obligations Oaktree Loan and Security Agreement On March 17, 2022 (“Closing Date”), the Company entered into a Senior Credit Agreement with Oaktree under which it borrowed $ 50.0 million in the form of a term loan. The term loan has a maturity date of March 17, 2027 , and prior to the amendments entered into in August and September 2023, initially bore interest at the Secured Overnight Financing Rate (“SOFR”) + 8.75 % (with a SOFR floor of 1.00%). Once Trudhesa achieves at least $ 125.0 million in net sales over a trailing 12-month period, interest would step down to SOFR + 8.00 % (with a SOFR floor of 1.00%). The Company is required to make quarterly interest-only payments until the fourth anniversary of the Closing Date, after which the Company is required to make quarterly amortizing payments, with the remaining balance of the principal plus accrued and unpaid interest due at maturity. Prepayments of the loan, in whole or in part, would be subject to early prepayment fee which declines each year until the fourth anniversary date of the Closing Date, after which no prepayment fee is required. The Company was also required to pay an exit fee upon any payment or prepayment equal to 2.0 % of the aggregate principal amount of the loans funded under the Senior Credit Agreement. The Senior Credit Agreement contains customary representations, warranties and events o f default. If the Company defaults under its Senior Credit Agreement, the lenders may accelerate all of the Company's repayment obligations and take control of its pledged assets. The lenders could declare the Company in default under its debt obligation upon the occurrence of any event that the lenders interpret as having a material adverse effect as defined under the Senior Credit Agreement and the Revenue Interest Financing Agreement (the “RIF”, described further below under “Deferred Royalty Obligation”), thereby requiring the Company to repay the loans immediately or to attempt to reverse the lenders’ declaration through negotiation or litigation. Among other loan covenant requirements, the Senior Credit Agreement also requires the Company to provide an audit opinion of its annual financial statements not subject to any “going concern” or like qualification or exception or explanatory paragraph of going concern footnote. On March 22, 2023, the Company entered into a letter agreement with Oaktree in connection with its Senior Credit Agreement, to obtain a waiver from Oaktree for any default or event of default arising from the going concern explanatory paragraph included in the report of its Independent Registered Public Accounting Firm on its audited consolidated financial statements for the year ended December 31, 2022. Under the Senior Credit Agreement, the Company is subject to a minimum liquidity requirement of $ 12.5 million unrestricted cash balance at all times (the “liquidity covenant”) and was in violation of this covenant prior to the execution of the first amendment to the Senior Credit Agreement. The Company identified a number of embedded derivatives that require bifurcation from the term loan and that were separately accounted for in the consolidated financial statements as one compound derivative liability. Certain of these embedded features include change in control provisions, events of default and contingent rate increases and were determined to qualify as an embedded derivative under ASC 815-40. The embedded derivative and the term loan obligation have been netted to result in a net loan obligation and is classified as a Level 3 financial liability in the fair value hierarchy. The fair value of the embedded derivative liabilities associated with the term loan were estimated using the discounted cash flow method under the income approach. This involves significant Level 3 inputs and assumptions including an estimated probability and timing of a change in control and events of default (see Note 3 for additional details). The Company re-evaluates this assessment each reporting period and records any gains or losses in other income (expense). The initial recognition of the embedded derivative liability upon issuance of the Oaktree term loan was $ 0.4 million and was included in the term loan obligation in the consolidated balance sheets. At December 31, 2022 the fair value of the embedded derivative liability was $ 0.6 million. The fair value of the embedded derivative liability was zero prior to the execution of the amendments to the Senior Credit Agreement described below. In connection with the issuance of the term loan, the Company recorded debt discount and debt issuance costs of $ 2.9 million. The discount and issuance costs are amortized over the life of the term loan. A portion of the loan proceeds were used to repay in full the $ 32.9 million aggregate principal amount (including the prepayment fee and final payment fee) of loans outstanding owed to Oxford Finance LLC (“Oxford”) and Silicon Valley Bank (“SVB” and together with Oxford, the “Prior Lenders”) by the Company in the first quarter of 2022. 2023 Amendments On August 21, 2023, the Company entered into the first amendment to the Senior Credit Agreement and the RIF with Oaktree and the Purchasers (collectively, the “First Amendment” and, together with the Second Amendment (as defined below), the “Amended Senior Credit Agreement”). The Company drew down $ 3.0 million of Tranche A-2 term loans under the First Amendment and the Purchasers agreed to exchange $ 9.0 million of obligations owed to the Purchasers under the RIF for $ 9.0 million of Tranche A-2 term loans under the Amended Senior Credit Agreement. Additionally, the terms related to the interest rate were entirely modified and rate was increased to SOFR + 10.75 %. The two parties were negotiating the terms of a second amendment at the execution of the first amendment. On September 5, 2023, the Company entered into the second amendment to the Senior Credit Agreement and RIF with the Secured Parties (the “Second Amendment”). Pursuant to the Second Amendment, the Secured Parties provided the Company with first lien Tranche B term loans for an aggregate principal amount of $ 20.0 million. The Company drew down $ 4.5 million of Tranche B term loans under the Amended Senior Credit Agreement and exchanged $ 3.0 million of Tranche A-2 term loans on a dollar-to-dollar basis into Tranche B term loans. Additionally, the Company exchanged all of its outstanding obligations, including accrued interest, of $ 51.4 million under the Senior Credit Agreement and of $ 9.0 million in Tranche A-2 term loans under the Amended Senior Credit Agreement as well as $ 41.0 million from the RIF into first lien Tranche A term loans for a principal amount of $ 101.5 million that includes an in-kind forbearance fee of $ 5.0 million, providing a forbearance from the Company’s default of the minimum liquidity requirement until December 31, 2023. The Company had the right to draw up to an additional $ 12.5 million in Tranche B term loans over the remainder of 2023 subject to the Company’s achievement of certain strategic milestones, satisfaction of minimum net revenue and product units sold covenants and satisfaction of certain other covenants and conditions. In connection with the execution of the Second Amendment, the RIF was terminated. Affiliates of KKR Iris Investors LLC, a holder of greater than 10% of the Company’s common stock, are lenders of a portion of the Tranche B term loans under the Amended Senior Credit Agreement. Further, the Tranche B lenders received warrants to purchase common stock having an aggregate warrant coverage equal to an aggregate of approximately 19.99 % of the Company's outstanding shares and an exercise price of $ 0.01 per share. Warrants to purchase a total of 1,781,175 shares of common stock were issued upon execution of the second amendment. Warrants for the purchase of up to 2,968,625 shares of common stock shall be issued on a pro rata basis to each lender in connection with each subsequent draw by the Company of the Tranche B term loans. The fair value of the warrants upon issuance of $ 0.7 million was recorded as a debt discount. Refer to Note 3. Interest will be paid in kind (PIK) on both the Tranche A and Tranche B term loans through the end of the forbearance period, which was extended to December 31, 2023 under the second amendment, and accrues at SOFR + 10.75 %. Quarterly principal payments of $ 2.5 million will commence after March 2026 with the remaining balance paid upon maturity. The Tranche B lenders are entitled to a 2x multiple on invested capital (the “Tranche B Return Shortfall”) on repayment or prepayment of the Tranche B term loans. Under the second amendment, with the exception of the Tranche B Return Shortfall, any prepayment of the term loans would no longer be subject to any prepayment fees; however, any payment or prepayment of the Tranche A term loans would be subject to an exit fee of $ 3.0 million, an increase of $ 2.0 million from the exit fee under the original terms of the Senior Credit Agreement. The Tranche A lenders and Tranche B lenders will be entitled to be repaid a maximum aggregate amount of approximately $ 141.5 million (assuming the entire $ 20.0 million of Tranche B term loans are funded), plus PIK interest on the Tranche A term loan. In addition to the liquidity covenant previously included in the terms of the Senior Credit Agreement, the Second Amendment added a minimum net revenue and product units sold covenant specifying the minimum revenue and units to be sold in subsequent three-week periods beginning after September 15, 2023. Compliance with the liquidity covenant was deferred until after December 31, 2023. The Second Amendment also provided for other modifications to existing covenants, including additional reporting obligations and additional milestones. Furthermore, the Company was required to transfer $ 4.5 million to an account subject to a control agreement between the Company and Oaktree. The account is restricted as to use except in the event of commencement of bankruptcy proceedings by the Company. As such, these funds are classified as restricted cash on the condensed consolidated balance sheet as of September 30, 2023. The Company was in violation of its minimum net revenue covenant and did not meet certain contractual milestones at September 30, 2023 resulting in the execution of the third and fourth amendments to waive these events of default. See Note 14 for additional information. The amounts outstanding under the Amended Senior Credit Agreement are secured and collateralized by all of the Company’s assets. The Amended Senior Credit Agreement also provides for certain modifications to the existing covenants, including additional reporting obligations, minimum net revenue and product units sold covenants and additional milestones. In addition, the Amended Senior Credit Agreement includes customary events of default, the occurrence of which could result in termination of Oaktree’s commitments or the acceleration of the Company’s obligations under the Amended Senior Credit Agreement. The Company identified certain prepayment features in the Tranche B term loans that are embedded derivatives requiring bifurcation from the term loan and recognition as one compound derivative liability. Certain of these embedded features include events of default, casualty events or asset sales and were determined to qualify as an embedded derivative under ASC 815-40. The embedded derivative and the term loan obligation have been netted to result in a net loan obligation and is classified as a Level 3 financial liability in the fair value hierarchy. The fair value of the embedded derivative liabilities associated with the term loan were estimated using the discounted cash flow method under the income approach. This involves significant Level 3 inputs and assumptions including an estimated probability and timing of events of default, casualty events or asset sales (see Note 3 for additional details). The Company re-evaluates this assessment each reporting period and records any gains or losses in other income (expense). There was zero value upon initial recognition of the embedded derivative liability upon issuance of the Oaktree term loan. The Company determined that the First and Second Amendments were modifications under ASC 470, Debt with Conversion and Other Options and no gain or loss was recognized as a result of the amendments. The unamortized balance of debt discounts and debt issuance costs prior to the amendments of $ 4.9 million was carried over to the balance of the Tranche A term loans. The Company incurred lender fees of $ 0.4 million in relation to the amendments that were recorded as an additional debt discount. The discount and issuance costs are amortized over the life of the term loans. Debt issuance costs of $ 0.5 million were expensed as incurred. Interest expense for the three months ended September 30, 2023 and 2022 was $ 2.9 million and $ 1.6 million, respectively, and for the nine months ended September 30, 2023 and 2022 was $ 6.7 million and $ 3.1 million, respectively, and is inclusive of non-cash amortization of the debt discount and debt issuance costs and accretion of the exit fee and Tranche B Return Shortfall. The fair value of the Tranche A and Tranche B term loans at September 30, 2023 was equal to their carrying value due to the recent refinancing of the Amended Senior Credit Agreement. The Company has classified the term loans as current liabilities on the condensed consolidated balance sheet. The Company has obtained limited waivers from the Secured Parties and executed two new amendments to the Amended Senior Credit Agreement subsequent to September 30, 2023; however, as of the date of financial statement issuance, the Company failed to meet the minimum net revenue and product units sold covenants. Deferred Royalty Obligation On March 17, 2022, the Company entered into a RIF (also known as the “Deferred Royalty Obligation”) with “the Purchasers” pursuant to which the Company sold to the Purchasers the right to receive payments from us at a tiered percentage (the “Applicable Tiered Percentage”), of future net revenues of Trudhesa, including worldwide net product sales and upfront payments, and milestones, (collectively, “the Revenue Interests”). Under the terms of the RIF Agreement, the Company received $ 50.0 million (“Investment Amount”), less transaction expenses, in exchange for tiered royalty payments on worldwide net sales from Trudhesa, as follows: 7.75% on annual United States net sales up to $150.0 million; 4.75% on annual United States net sales between $150 million and $300 million; 0.75% on annual United States net sales greater than $300.0 million; and 10% of any upfront payments, milestone payments and royalties received by us from licensing or partnerships relating to Trudhesa outside the United States . In connection with the execution of the Second Amendment described above, the RIF was terminated. Prior to the Second Amendment, The Purchasers’ rights to receive the Revenue Interests would terminate on the date on which the Purchasers have received payments equal to 175% of the funded portion of the Investment Amount including the aggregate of all payments made to the Purchasers as of such date, unless the RIF is earlier terminated. If the Purchasers have not received payments equal to the 175% of the funded portion of the Investment Amount by the nine-year anniversary of the initial closing date, among other things, the Company shall pay the Purchasers an amount equal to the funded portion of the Investment Amount plus a specific annual rate of return less payments previously received. Under the RIF, the Company had an option (the “Call Option”) to repurchase future Revenue Interests at any time until the third anniversary of the Closing Date upon advance written notice. Additionally, the Purchasers had an option (the “Put Option”) to terminate the RIF and to require the Company to repurchase future Revenue Interests upon enumerated events such as a bankruptcy event, a material adverse effect or a change of control. If the Put Option or the Call Option are exercised, the required repurchase price is (i) as of any date before the one-year anniversary of the Closing Date, an amount equal to (a) 1.25 multiplied by (b) the Investment Amount, (ii) as of any date on or after the one-year anniversary of the Closing Date and before the two-year anniversary of the Closing Date, an amount equal to (a) 1.40 multiplied by (b) the Investment Amount, (iii) as of any date on or after the two-year anniversary of the Closing Date and before the three-year anniversary of the Closing Date, an amount equal to (a) 1.55 multiplied by (b) the Investment Amount, and (iv) as of any date on or after the three-year anniversary of the Closing Date, an amount equal to (a) 1.75 multiplied by (b) the Investment Amount, in each case net of the sum of any payments received by the Purchasers prior to such Put Option Closing Date or Call Option Closing Date, as applicable. If the Purchasers have not received 100% of the Investment Amount by February 15, 2027, the first tier royalty rate would be subject to an increase from 7.75 % to 10.75 %. As of September 30, 2023, the Company had made $ 1.2 million in payments to the Purchasers prior to the Second Amendment. The Company's obligations under the RIF were secured, subject to customary permitted liens and other agreed upon exceptions and subject to an intercreditor agreement with Oaktree, by a perfected security interest in (i) accounts receivable arising from net sales of Trudhesa and (ii) intellectual property that is claiming or covering Trudhesa, or any method of using, making or manufacturing Trudhesa, including regulatory approvals, clinical data and all other Trudhesa assets. As noted above, the Company determined that the first and second amendments to the Senior Credit Agreement with existing Oaktree lenders and the RIF were modifications under ASC 470, Debt with Conversion and Other Options and no gain or loss was recognized as a result of the amendments. The Company evaluated the terms of the deferred royalty obligation and concluded that the features of the Investment Amount are similar to those of a debt instrument. Accordingly, the Company accounted for the transaction as long-term debt recorded at amortized cost using the effective interest method. The Company further evaluated the terms of the debt and determined that the Put Options under the RIF that were exercisable by Purchasers upon certain contingent events were determined to be embedded derivatives requiring bifurcation and separately accounted for as a single compound derivative instrument (see Note 3). The Put Option has been determined to qualify as an embedded derivative under ASC 815-40. The embedded derivative and the deferred royalty obligation were netted to result in a net deferred royalty obligation as of December 31, 2022. The embedded derivative is classified as a Level 3 financial liability in the fair value hierarchy. The Company determined the fair value of the derivative using an option pricing Monte Carlo simulation model taking into account the probability of change of control or event of default occurring and potential repayment amounts and timing of such payments that would result under various scenarios, as further described in Note 3. The Company recorded the initial fair value of the derivative liability of $ 1.5 million which was included in the deferred royalty obligation in the consolidated balance sheet. The Company remeasured the derivative liability to fair value each reporting period until the termination of the RIF whereby the fair value of the derivative was determined to be zero. At December 31, 2022 the fair value of the derivative liability was $ 11.0 million. The fair value of the derivative liability was zero prior to the execution of the amendments to the Senior Credit Agreement described above. Interest expense recognized for the three months ended September 30, 2023 and 2022 was $ 0.8 million and $ 1.8 million, and for the nine months ended September 30, 2023 and 2022 was $ 3.4 million and $ 4.1 million, respectively. Oxford and Silicon Valley Bank Term Loan In July 2021, the Company entered into the Loan Agreement with the “Prior Lenders”, to lend the Company up to an aggregate of $ 50.0 million in a series of term loans (the “Term Loan”). The term loans accrued interest at the greater of (i) 7.95% or (ii) the sum of (a) the greater of (1) the thirty (30) day U.S. LIBOR or (2) 0.11%, plus (b) 7.84% and were subject to a prepayment fee of 1.0 % to 3.0 % depending upon when the prepayment occurs. On repayment of the Term Loans, the Company was required to make a final payment fee to the Prior Lenders equal to 6.5 % of the original principal amount of the Term Loans. On March 17, 2022, upon entering into the Senior Credit Agreement, the Company repaid the $ 30.0 million of outstanding principal, interest, including prepayment and final payment fees owed under the Loan Agreement to the Prior Lenders. The Company recorded a loss of $ 3.3 million on the early extinguishment of debt related to the unamortized debt discount associated with the fair value of the warrants, final payment fee, and unamortized debt issuance costs. The loss on early extinguishment was recognized as a component of interest expense, net in the consolidated statement of operations and other comprehensive loss. Interest expense for the three and nine months ended September 30, 2022 was $ 0.7 million and was inclusive of non-cash amortization in the amount of $ 0.2 million related to the amortization of the debt issuance costs and accretion of final payment. In connection with entering into the Loan Agreement and borrowings under the agreement, the Company issued warrants to purchase 71,522 and 23,166 , shares of its common stock, respectively, to the Prior Lenders at a per share exercisable price of $ 8.39 per share and $ 12.95 per share, respectively, all with ten year terms. |