Subsequent Events | (16) Subsequent Events Restructuring Agreement On January 11, 2018, we entered into a Restructuring and Exchange Agreement (the “Restructuring Agreement”) with the Holders. The Restructuring Agreement set forth several obligations and approvals that we needed to complete in order to close the Restructuring Agreement and the transaction contemplated thereby (the “Restructuring”), which are described throughout this Note 16. Under the Restructuring Agreement, we agreed to several standard representations, warranties and covenants. Further, we agreed to indemnify certain of our officers and representatives and certain affiliates and representatives of the Holders for all damages arising from any losses based upon any act related to us, the Restructuring, the Restructuring Agreement or any related documents. Pursuant to the Restructuring Agreement, and following the execution of the Sixth Amendment to the 2017 Notes, described below, on January 17, 2018, ROS and Royalty Opportunities converted the 2017 Notes, plus accrued and unpaid interest, at the $ 9.11 189,645 121,045 68,600 In connection with the Restructuring Agreement, we also set a special meeting of the stockholders (the “Special Meeting”), to approve certain items related to the Restructuring Agreement and the Restructuring. We held the Special Meeting on February 13, 2018, and at such meeting our stockholders approved all three proposals related to the Restructuring, which were as follows: ⋅ Approval of the issuance of shares of common stock for purposes of Sections 713(a) and 713(b) of the NYSE American Company Guide. ⋅ Approval of an amendment to our certificate of incorporation (“Charter”) to affect a Reverse Stock Split (defined below), to change the number of authorized shares of common stock and preferred stock available for issuance and to make such other changes as are described below. ⋅ Approval of John Bakewell, Michael Eggenberg, Michael Mainelli, Robert McNamara, Jeffrey Peters and Matthew Rizzo as the new directors to the Board to serve until the 2018 Annual Meeting of Stockholders and until they or respective successors have been duly elected and qualified. After giving effect to the Reverse Stock Split and upon approval of the stockholders at the Special Meeting, on February 14, 2018, the remaining $ 70.238 6.00 138.8889 1,000 7.20 10,401,309 Holder Common Stock issued in Notes Exchange ROS 5,126,534 Royalty Opportunities 2,905,396 Bruce Fund 296,172 PWPI 153,828 PWIMF 1,104,905 Telemetry 814,474 Upon the completion of the Notes Exchange, all outstanding obligations under the Remaining Notes were satisfied in full and the Indenture and the 2016 Notes were discharged. Support Agreement On January 11, 2018, the Holders, our executive officers and directors and certain of our stockholders (collectively the “Support Equityholders”), entered into a support agreement (the “Support Agreement”) simultaneously with the execution of the Restructuring Agreement. Under the Support Agreement, the Support Equityholders agreed to vote their shares of common stock in favor of the approval of: (i) the amendment to our Charter and the issuance of common stock pursuant to the Notes Exchange, (ii) any proposal to adjourn or postpone the meeting to a later date, if there were not sufficient votes for the approval of the such proposals on the date on which such meeting is held, and (iii) any other proposal included in the proxy statement for the Special Meeting that relates to the consummation of the Restructuring that the Board recommended our stockholders approve. The Support Equityholders also appointed ROS and Royalty Opportunities as attorney-in-fact and proxy to vote all applicable shares of the Support Equityholders consistent with the provisions of the Support Agreement. The Support Equityholders made standard representations and warranties related to their ownership of common stock. Sixth Amendment to the 2017 Notes Effective January 17, 2018, we entered into the Sixth Amendment with ROS and Royalty Opportunities, which amended the 2017 Notes. The amendment amended the 2017 Notes by removing the limitations on stock ownership that prevented ROS, Royalty Opportunities or any of their affiliates from effecting a conversion of the 2017 Notes if such conversion would result in the holder or any of its affiliates beneficially owning in excess of 9.99 Twenty-Second Amendment to Amended and Restated Credit Agreement Effective January 30, 2018, Bacterin, the Company, X-Spine, Xtant Medical, ROS and Royalty Opportunities, entered into the Twenty-Second Amendment to Amended and Restated Credit Agreement, which amended the Credit Facility. The amendment further deferred Bacterin’s accrued interest payment date for the fiscal quarters ended on December 31, 2016, March 31, 2017, June 30, 2017, September 30, 2017 and December 31, 2017 until February 28, 2018. The interest due on February 28, 2018 for the fiscal quarter ended on December 31, 2016, is $ 1,147,329 interest accrued on such interest from January 2, 2017 until paid at a rate equal to 14% plus the higher of the LIBO Rate (as defined in the Credit Facility) for the fiscal quarter ended on December 31, 2016, or 1% 1,139,597 interest accrued on such interest from April 1, 2017 until paid at a rate equal to 14% plus the higher of the LIBO Rate for the fiscal quarter ended on March 31, 2017, or 1% 1,303,935 interest accrued on such interest from July 1, 2017 until paid at a rate equal to 14% plus the higher of the LIBO Rate for the fiscal quarter ended on June 30, 2017, or 1% 1,482,406 interest accrued on such interest from October 2, 2017 until paid at a rate equal to 14% plus the higher of the LIBO Rate for the fiscal quarter ended on September 30, 2017, or 1% 1,521,262 interest accrued on such interest from January 2, 2018 until paid at a rate equal to 14% plus the higher of the LIBO Rate for the fiscal quarter ended on December 31, 2017, or 1%. The amendment also modified the minimum liquidity financial covenant of the Credit Facility by allowing the Company and its subsidiaries to maintain a liquidity amount of not less than $ 100,000 5,000,000 Amendment Number 6 to Indenture Effective January 30, 2018, we entered into the Amendment Number 6 to Indenture with Wilmington Trust, National Association, which amended the Indenture. The amendment amended the Indenture by moving the payment date of interest accrued on the Notes issued under the Indenture as follows: (a) for interest accrued on the such Notes that was originally required to be paid on July 15, 2017, from January 31, 2018 to February 28, 2018, and (b) for interest accrued on the such Notes that is required to be paid on January 15, 2018, from January 31, 2018 to February 28, 2018. The Indenture Amendment also set the record dates for the February 28, 2018 interest payments at June 30, 2017 and December 31, 2017, respectively, and waived any event of default that may have occurred as a result of the non-payment of interest on July 15, 2017 or January 15, 2018. The interest payments due on February 28, 2018 includes interest accrued on such interest from July 15, 2017 and January 15, 2018, respectively, to the date of payment thereof at a rate equal to 6.00 Sixth Amendment and Waiver to the 2016 Notes Effective January 30, 2018, we entered into the Sixth Amendment and Waiver with ROS and Royalty Opportunities, which amended the 2016 Notes. The amendment amended the 2016 Notes by moving the payment date of interest accrued on the 2016 Notes as follows: (a) for interest accrued on the 2016 Notes that was originally required to be paid on July 15, 2017, from January 31, 2018 to February 28, 2018, and (b) for interest accrued on the 2016 Notes that is required to be paid on January 15, 2018, from January 31, 2018 to February 28, 2018. The amendment also waived any event of default that may have occurred as a result of the non-payment of interest on July 15, 2017 or January 15, 2018. The interest payment due on February 28, 2018 includes interest accrued on such interest from July 15, 2017 and January 15, 2018, respectively, to the date of payment thereof at a rate equal to 6.00% per annum plus 100 basis points. Amended and Restated Certificate of Incorporation On February 13, 2018, following the Special Meeting, we filed with the Secretary of State of the State of Delaware a Certificate of Amendment to our Charter (the “Certificate Amendment”) to affect the Reverse Stock Split. The Certificate Amendment amended and restated our Charter, to, among other things: ⋅ effect a reverse stock split at a ratio of 1-for-12 (the “Reverse Stock Split”); ⋅ after giving effect to the Reverse Stock Split, decrease the number of authorized shares of common stock available for issuance from 95,000,000 50,000,000 5,000,000 10,000,000 ⋅ authorize the Board to increase or decrease the number of shares of any series of our capital stock, provided that such increase or decrease does not exceed the number of authorized shares or be less than the number of shares then outstanding; ⋅ authorize the Board to issue new series of preferred stock without approval of the holders of common stock or other series of preferred stock, with such powers, preferences and rights as may be determined by the Board; ⋅ authorize a majority of the Board to fix the number of our directors; ⋅ indemnify the members of the Board to the fullest extent permitted by law; ⋅ remove the classification of the Board to require all directors to be elected annually; ⋅ provide that special meetings of our stockholders may only be called by the Board, the chairman of the Board or our chief executive officer; ⋅ provide that no stockholder will be permitted to cumulative voting at any election of directors; ⋅ elect not to be governed by Section 203 of the Delaware General Corporation Law (the “DGCL”); ⋅ elect the Court of Chancery of the State of Delaware to be the exclusive forum for any derivative action or proceeding brought on our behalf, any action asserting a breach of a fiduciary duty owed by any of our directors, officers or other employees, any action under the DGCL, our Charter or bylaws or any actions governed by the internal affairs doctrine; and ⋅ require the vote of at least two-thirds of the voting power of the then outstanding shares of our capital stock to amend or repeal certain provisions of our Charter. The Reverse Stock Split became effective as of 5:00 p.m. Eastern Time on February 13, 2018, and our common stock began trading on a split-adjusted basis when the market opened on February 14, 2018. Upon the effectiveness of the Reverse Stock Split, every 12 shares of our issued and outstanding common stock automatically converted into one share of common stock, without any change in the par value per share. In addition, a proportionate adjustment was made to the per share exercise price and the number of shares issuable upon the exercise of all of our outstanding convertible securities to purchase shares of common stock and the number of shares reserved for issuance pursuant to our equity incentive compensation plan. Any fraction of a share of common stock that would otherwise have resulted from the Reverse Stock Split was rounded down to the nearest whole share. Twenty-Third Amendment to Amended and Restated Credit Agreement Effective February 14, 2018, Bacterin, the Company, X-Spine, Xtant Medical, ROS and Royalty Opportunities, entered into the Twenty-Third Amendment to Amended and Restated Credit Agreement, which amended the Credit Facility. As of this Amendment, the interest payable has been carried forward at the modified interest rate options within the Credit Facility as follows: (a) through December 31, 2018, we will have the option at our sole discretion (i) to pay PIK Interest at LIBOR (as defined in the Credit Facility) plus 12 10 15 10 10 1 The amendment also made the following modifications to the financial covenants of the Credit Facility: ⋅ The minimum revenue base covenant was removed in its entirety. ⋅ The minimum liquidity financial covenant of the Credit Facility was revised to allow the Company and its subsidiaries to maintain a liquidity amount of not less than $ 500,000 ⋅ The maximum consolidated senior leverage ratio covenant was modified as follows: Four Fiscal Quarters Ended Consolidated Senior Leverage Ratio June 30, 2019 10.00:1.00 September 30, 2019 10.00:1.00 December 31, 2019 8.00:1.00 March 31, 2020 7.00:1.00 June 30, 2020 7.00:1.00 ⋅ A new minimum Consolidated EDITDA covenant was added as follows: Testing Period Minimum Consolidated EBITDA Three quarter period ended September 30, 2018 $2.2 million Four quarter period ended December 31, 2018 $4.0 million Four quarter period ended March 31, 2019 $5.5 million Four quarter period ended June 30, 2019 $7.0 million Four quarter period ended September 30, 2019 $8.5 million Four quarter period ended December 31, 2019 $10 million Four quarter period ended March 31, 2020 The greater of (a) $10 million or (b) 75% of projected Adjusted EBITDA for such period pursuant to projections, based on good faith estimates and assumptions believed to be reasonable at the time made, delivered to ROS no later than December 31, 2019 Four quarter period ended June 30, 2020 The greater of (a) $10 million or (b) 75% of projected Adjusted EBITDA for such period pursuant to projections, based on good faith estimates and assumptions believed to be reasonable at the time made, delivered to ROS no later than December 31, 2019 Private Placement SPA On February 14, 2018, we entered into a Securities Purchase Agreement (the “Private Placement SPA”) with ROS and Royalty Opportunities. Pursuant to the Private Placement SPA, on February 14, 2018, ROS and Royalty Opportunities purchased from us a total of 945,819 7.20 6,809,896 603,687 342,132 Investor Rights Agreement Effective February 14, 2018, we entered into an Investor Rights Agreement (the “Investor Rights Agreement”) with Royalty Opportunities, ROS, PWPI, and PWIMF. Under the Investor Rights Agreement, ROS and Royalty Opportunities are permitted to nominate a majority of our directors and designate the chairperson of the Board at subsequent annual meetings, as long as they maintain an ownership threshold in the Company of at least 40 For so long as the Ownership Threshold is met, we must obtain the approval of ROS and Royalty Opportunities to proceed with the following actions: (i) issue new securities; (ii) incur over $250,000 of debt in a fiscal year; (iii) sell or transfer over $250,000 of our assets or businesses or our subsidiaries in a fiscal year; (iv) acquire over $250,000 of assets or properties in a fiscal year; (v) make capital expenditures over $125,000 individually, or $1,500,000 in the aggregate during a fiscal year; (vi) approve our annual budget; (vii) hire or terminate our chief executive officer; (viii) appoint or remove the chairperson of the Board; and (ix) make, loans to, investments in, or purchase, or permit any subsidiary to purchase, any stock or other securities in another entity in excess of $250,000 in a fiscal year. As long as the Ownership Threshold is met, we may not increase the size of the Board beyond seven directors without the approval of a majority of the directors nominated by ROS and Royalty Opportunities. The Investor Rights Agreement Grants Royalty Opportunities, ROS, PWPI and PWIMF the right to purchase from us a pro rata amount of any new securities that we may propose to issue and sell. The Investor Rights Agreement may be terminated (a) upon the mutual written agreement of all the parties, (b) upon written notice of the Company, ROS or Royalty Opportunities, if ROS and Royalty Opportunities’ ownership percentage of our then outstanding common stock is less than 10%, or (c) upon written notice of ROS and Royalty Opportunities. Registration Rights Agreement Effective February 14, 2018, we entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with the Holders. The Registration Rights Agreement requires us to, among other things, file with the SEC a shelf registration statement (which, initially, will be on Form S-1 and, as soon as we are eligible, will be on Form S-3) covering the resale, from time to time, of our common stock issued: (i) under the Tier 1 Transaction, (ii) upon the Notes Exchange, or (iii) under the Private Placement SPA, within 90 days of the date of the Registration Rights Agreement. We agree to use our best efforts to cause the shelf registration statement to become effective under the Securities Act no later than the 180th day after such demand; provided, that if the SEC notifies us that it will not review or has no comments to such initial registration statement within 110 days after the date of the Registration Rights Agreement, we will use our best efforts to cause such registration statement to become effective under the Securities Act no later than the 120th day after the date of the Registration Rights Agreement. Second Amended and Restated Bylaws On February 14, 2018, we amended and restated our current bylaws by adopting the Second Amended and Restated Bylaws of the Company (the “Amended Bylaws”). The Amended Bylaws amended our existing bylaws to, among other things: ⋅ provide for annual and special meetings of stockholders to be held through remote communications; ⋅ provide for the election of any directors not elected at an annual meeting of stockholders to be elected at a special meeting of stockholders; ⋅ declassify the Board into one group of directors that will hold office until the subsequent annual meeting of stockholders and until the election and qualification of such directors’ respective successors; ⋅ provide for the filling of a new directorship or director vacancy by the affirmative vote of the holders of a majority of the voting power of our shares of stock; ⋅ allow for a majority of the Board present to adjourn a Board meeting if a quorum is not met; ⋅ unless otherwise restricted in the Amended Bylaws or our Charter, provide the Board with the authority to fix the compensation of directors, including without limitation, compensation for services as members of Board committees; ⋅ allow us to enter into an agreement with a stockholder to restrict the transfer of shares held by such stockholder in any manner not prohibited by the DGCL); ⋅ allow the Board to declare dividends on our capital stock, subject to any provisions of our Charter and applicable law; ⋅ allow us to maintain insurance on behalf of any of our directors or officers; and ⋅ allow us to provide electronic notice to our stockholders, if consented to by such stockholder in accordance with Section 232 of the DGCL. Compliance with NYSE American Continued Listing Standards On February 15, 2018, we filed a Current Report on Form 8-K with the SEC to disclose our unaudited pro forma stockholders’ equity of approximately $ 47,362,434 |