Convertible Notes | 6. Convertible Notes The following table summarizes significant terms of the Company's Convertible Notes at September 30, 2024 (in thousands): September 30, 2024 Face Value Carrying Value Fair Value (1) Stated Interest Rate Effective Interest Rate Non-Affiliate 2028 Convertible Notes (2) $ 39,901 $ 14,344 $ 14,807 11 - 13 % 50.9 % Related Party 2028 Convertible Notes (3) $ 18,400 $ 19,721 $ 5,853 11 - 13 % 24.7 % 2025 Convertible Notes $ 4,600 $ 4,527 $ 2,676 7.25 % 8.7 % (1) To estimate the fair value of the Non-Affiliate 2028 Convertible Notes, the Company used a binomial pricing model. Including the derivative liabilities of $ 23.0 million, the Non-Affiliate 2028 Convertible Notes fair value using the with method is $ 37.8 million. To estimate the fair value of the Related Party 2028 Convertible Notes, the Company used a binomial pricing model. Including the derivative liabilities of $ 12.1 million, the Non-Affiliate 2028 Convertible Notes fair value using the with method is $ 17.9 million. To estimate the fair value of the 2025 Convertible Notes, the Company used unadjusted quoted prices in the active market obtained from third-party pricing services. (2) The face value includes $ 24.0 million in Payment Priority Notes (as defined below) and $ 1.8 million in PIK Notes (as defined below). (3) The face value includes $ 5.5 million in Payment Priority Notes (as defined below) and $ 1.0 million in PIK Notes (as defined below). The following table summarizes significant terms of the Company’s Convertible Notes at December 31, 2023 (in thousands): December 31, 2023 Face Value Carrying Value Fair Value (4) Stated Interest Rate Effective Interest Rate Non-Affiliate 2028 Convertible Notes $ 23,500 $ 14,591 $ 14,846 11 - 13 % 48.9 % Related Party 2028 Convertible Notes $ 17,383 $ 21,155 $ 10,982 11 - 13 % ( 22.0 )% 2025 Convertible Notes $ 10,225 $ 9,966 $ 5,984 7.25 % 8.7 % (4) To estimate the fair value of the 2028 Convertible Notes, the Company used a binomial pricing model. Including the derivative liabilities of $ 22.9 million, the 2028 Convertible Notes fair value using the with method is $ 48.7 million. To estimate the fair value of the 2025 Convertible Notes, the Company used unadjusted quoted prices in the active market obtained from third-party pricing services. As discussed in Note 1, while the Company was in compliance with its debt and related covenants as of September 30, 2024 and through the date of this filing, indications suggest that the Company may not be able to continue to maintain compliance with the financial covenants under its debt agreements for at least the next twelve months. As a result, all Convertible Notes and related derivative liabilities have been reclassified to current on the condensed consolidated balance sheet as of September 30, 2024. The carrying value of the Convertible Notes does not approximate their fair values because the carrying values reflect the balance of unamortized discount related to the derivative liabilities associated with the value of the conversion features assessed at inception. The Company amortizes the debt discount using the effective interest method over the term of the Convertible Notes. As of September 30, 2024 and December 31, 2023, the unamortized debt discount on the 2025 Convertible Notes was $ 0.1 million and $ 0.3 million, respectively. The amortization of the debt discount was less than $ 0.1 million and $ 0.4 million for the three months ended September 30, 2024 and 2023, respectively, and $ 0.1 million and $ 1.1 million for the nine months ended September 30, 2024 and 2023, respectively, and is included in interest expense, net in the consolidated statements of operations. As of September 30, 2024 and December 31, 2023, the unamortized debt discount on the 2028 Convertible Notes was $ 43.4 million and $ 19.0 million, respectively. The amortization of the debt discount was $ 0.9 million and $ 3.2 million for the three and nine months ended September 30, 2024, respectively, and is included in interest expense, net in the consolidated statements of operations. 2025 Convertible Notes In December 2020, the Company issued a total of $ 168.5 million principal amount of 2025 Convertible Notes in a private offering of the Convertible Notes pursuant to Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"). The 2025 Convertible Notes were issued pursuant to, and are governed by, an indenture, dated as of December 7, 2020 , by and between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “2025 Convertible Notes Indenture”). The 2025 Convertible Notes are due on December 1, 2025 , unless earlier repurchased, redeemed or converted, and accrue interest at a rate per annum equal to 7.25 % payable semi-annually in arrears on June 1 and December 1 of each year, with the initial payment on June 1, 2021 . The Company recognized interest expense on the 2025 Convertible Notes of $ 0.1 million and $ 0.3 million for the three and nine months ended September 30, 2024, respectively, and $ 2.3 million and $ 7.1 million for the three and nine months ended September 30, 2023, respectively. The 2025 Convertible Notes are the Company's senior, unsecured obligations and are (i) equal in right of payment with the Company's existing and future senior, unsecured indebtedness; (ii) senior in right of payment to the Company's existing and future indebtedness that is expressly subordinated to the 2025 Convertible Notes; (iii) effectively subordinated to the Company's existing and future secured indebtedness, to the extent of the value of the collateral securing that indebtedness; and (iv) structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables, and (to the extent the Company is not a holder thereof) preferred equity, if any, of the Company's subsidiaries. At any time, noteholders may convert their 2025 Convertible Notes at their option into shares of the Company’s common stock, together, if applicable, with cash in lieu of any fractional share, at the then-applicable conversion rate. The initial conversion rate is 1.11204 shares of common stock per $1,000 principal amount of 2025 Convertible Notes, which represents an initial conversion price of approximately $ 899.25 per shar e of common stock. Noteholders that converted their 2025 Convertible Notes before December 1, 2022 were, in certain circumstances, entitled to an additional cash payment representing the present value of any remaining interest payments on the 2025 Convertible Notes through December 1, 2022. The conversion rate and conversion price are subject to customary adjustments upon the occurrence of certain dilutive events. In addition, if certain corporate events that constitute a “Make-Whole Fundamental Change” (as defined in the 2025 Convertible Notes Indenture) occur, then the conversion rate will, in certain circumstances, be increased for a specified period of time. The 2025 Convertible Notes are redeemable, in whole and not in part, at the Company’s option at any time on or after December 1, 2023 , at a cash redemption price equal to the principal amount of the 2025 Convertible Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, but only if the last reported sale price per share of the Company’s common stock exceeds 130 % of the conversion price on (i) each of at least 20 trading days, whether or not consecutive, during the 30 consecutive trading days ending on, and including, the trading day immediately before the date the Company sends the related redemption notice; and (ii) the trading day immediately before the date the Company sends such notice. In addition, calling the 2025 Convertible Notes will constitute a Make-Whole Fundamental Change, which will result in an increase to the conversion rate in certain circumstances for a specified period of time. If certain corporate events that constitute a “Fundamental Change” (as defined in the 2025 Convertible Notes Indenture) occur, then noteholders may require the Company to repurchase their 2025 Convertible Notes at a cash repurchase price equal to the principal amount of the 2025 Convertible Notes to be repurchased, plus accrued and unpaid interest, if any, to, but excluding, the fundamental change repurchase date. The definition of Fundamental Change includes certain business combination transactions involving the Company and certain de-listing events with respect to the Company’s common stock, including delisting from the Nasdaq Global Market. The 2025 Convertible No tes have customary provisions relating to the occurrence of “Events of Default” (as defined in the 2025 Convertible Notes Indenture). As of both September 30, 2024 and December 31, 2023, the Company was in compliance with all such covenants. The 2025 Convertible Notes had a conversion option which was required to be bifurcated upon issuance and recorded separately as an embedded derivative remeasured at fair value each reporting period with changes in fair value recorded in the consolidated statement of operations. As of December 31, 2022, the conversion option expired and there was no longer a derivative liability. Note Exchanges In September 2023, certain related party holders of 2025 Convertible Notes exchanged an aggregate of $ 50.0 million principal amount for a combination of 923,528 shares of the Company's common stock, 739,921 pre-funded warrants at an exercise price of $ 0.01 per share and warrants to purchase up to 1,663,449 shares of common stock at an exercise price of $ 30.10 per share . The warrants are exercisable on or after September 18, 2023 until September 18, 2026 and t he pre-funded warrants have no expiration date. T he pre-funded warrants and the warrants (together, the "September 2023 Warrants") are subject to certain exercise limitations, including a limitation on the ability to exercise if the holder’s beneficial ownership would exceed 49.9 %. As the 2025 Convertible Notes were exchanged for an amount over the fair value of shares issuable under the original conversion terms, the Company recorded an inducement loss of $ 53.2 million, included in other expense , net in the condensed consolidated statements of operations. Pursuant to Accounting Standards Codification ("ASC") Topic 815, Derivatives and Hedging ("ASC 815") the Company deemed the September 2023 Warrants to be classified as a liability at fair value initially with subsequent changes in fair value recorded in earnings. The September 2023 Warrants were recorded at a fair value of $ 35.1 million determined using the Black-Scholes Model. In December 2023, the Company entered into exchange agreements with certain holders of 2025 Convertible Notes to exchange an aggregate of $ 72.5 million principal amount for a combination of (i) $ 23.9 million in principal amount of 2028 Convertible Notes (ii) 62,500 shares of the Company's common stock, (iii) warrants to purchase 503,922 shares of common stock (the “Exchange Warrants”), and (iv) accrued and unpaid interest on the 2025 Convertible Notes. The Company also entered into note purchase agreements with certain investors (the "Purchasers") to purchase $ 17.0 million in principal amount of additional 2028 Convertible Notes from the Company for cash at par value. The Purchasers were granted warrants to purchase 508,460 shares of common stock (the “Additional Warrants”) and certain Purchasers were also granted warrants to purchase 735,292 shares of common stock (the “Commitment Warrants”). In connection with these agreements, the Company has agreed to allow certain of the parties to designate one observer to the Company's Board of Directors (the "Board"). The Exchange Warrants have an exercise price of $ 55.00 per share , are exercisable any time on or after December 19, 2023 and expire on December 19, 2028 , the Commitment Warrants have an exercise price of $ 13.60 per share , are exercisable at any time on or after June 19, 2024 and expire on December 19, 2028 , and the Additional Warrants have an exercise price of $ 50.00 per share, are exercisable any time on or after December 19, 2023 and expire on December 19, 2028 . Each of the Exchange Warrants, the Commitment Warrants and the Additional Warrants (together the "December 2023 Warrants") are subject to certain exercise limitations, including a limitation on the ability to exercise if the holder’s beneficial ownership of common stock would exceed specified levels. Pursuant to ASC 815, the December 2023 Warrants are classified as a liability at fair value initially with subsequent changes in fair value recorded in earnings. In connection with the March 2024 Offering (as defined below), 232,205 of the December 2023 Warrants were amended to (i) lower the exercise price to $ 11.00 per share , (ii) provide that the warrants were not exercisable until June 5, 2024 (the "Stockholder Approval Date") and (iii) extend the original expiration date to be five year s from the Stockholder Approval Date. The December note exchange with one holder of 2025 Convertible Notes constitutes a troubled debt restructuring ("TDR") under ASC Topic 470, Debt ("ASC 470") because the Company is experiencing financial difficulty and a concession has been granted by the holder. As the holder is a related party, the Company recorded the restructuring gain as a capital contribution resulting in $ 25.5 million of restructuring gain recorded within additional paid-in-capital as of December 31, 2023. Following the TDR guidance under ASC 470, future interest payments of approximately $ 11.7 million were also included in the carrying value of the 2028 Convertible Notes. The December note exchange with the other holders of 2025 Convertible Notes is considered a debt extinguishment under ASC 470. As a result, the Company recorded a loss on debt extinguishment of $ 6.4 million, which is the difference between the fair value of the 2028 Convertible Notes combined with the fair value of the warrants, derivative liabilities and common stock and the net carrying value of the 2025 Convertible Notes during the fourth quarter of 2023. On March 8, 2024 the Company entered into an exchange agreement with a holder of the Company’s 2025 Convertible Notes, pursuant to which the Company agreed to acquire an aggregate of $ 5.6 million of 2025 Convertible Notes from the holder in exchange for (i) $ 3.8 million in aggregate principal amount of 2028 Convertible Notes, and (ii) accrued and unpaid interest on the 2025 Convertible Notes exchanged. The Company also entered into a note purchase agreement with the investor pursuant to which the investor agreed to purchase $ 2.8 million in aggregate principal amount of 2028 Convertible Notes from the Company for cash at par value. Additionally, as part of the agreements, the investor was granted warrants to purchase 200,000 shares of common stock. The warrants have an exercise price of $ 27.50 per share , are exercisable at any time on or after September 12, 2024 and expire on March 12, 2029 . The warrants are subject to certain exercise limitations, including a limitation on the ability to exercise if the holder’s beneficial ownership of common stock would exceed specified levels. Pursuant to ASC 815, the warrants are classified as a liability at fair value initially with subsequent changes in fair value recorded in earnings. The exchange is considered a debt extinguishment under ASC 470. As a result, the Company recorded a loss on debt extinguishment of $ 0.2 million, which is the difference between the fair value of the 2028 Convertible Notes combined with the fair value of the warrants, derivative liabilities and the net carrying value of the 2025 Convertible Notes. 2028 Convertible Notes The 2028 Convertible Notes were issued pursuant to, and are governed by, an indenture (the “2028 Convertible Notes Indenture”), dated December 19, 2023 , by and between the Company and GLAS Trust Company LLC, as trustee. The 2028 Convertible Notes will mature on the earlier of December 19, 2028 and the date that is 90 days prior to the maturity of the Convertible Notes solely to the extent there are Convertible Notes outstanding in a principal amount equal to or greater than $ 5.0 million as of such date, unless earlier repurchased, redeemed or converted. In March 2024, the maturity date of the Convertible Notes was extended to December 19, 2028 . The Notes will accrue interest at a rate of 11.0 % per annum in the case of cash payment and 13.0 % in the case of blended payments or payments-in-kind, payable semi-annually in arrears on June 1 and December 1 of each year, with the initial payment on June 1, 2024 . The Company recognized interest expense on the 2028 Convertible Notes of $ 1.0 million and $ 2.5 million for the three and nine months ended September 30, 2024, respectively. In May 2024, the Company entered into an agreement with holders of the Company's 2028 Convertible Notes for payment in kind interest in the form of additional 11.00 %/ 13.00 % Notes (“PIK Notes”). The payment was made to the holders by issuing additional 2028 Convertible Notes in an amount equal to the interest payment obligation of approximately $ 2.8 million for the payment date occurring on June 1, 2024. On July 3, 2024, the Company entered into a letter agreement (the "Forbearance Agreement) with the holders of the 2028 Convertible Notes pursuant to which, in exchange for the holders agreeing to forbear, until July 31, 2024, from exercising or enforcing certain rights and remedies against the Company under the terms of the 2028 Convertible Notes Indenture as a result of the Company's potential failure to comply with minimum liquidity requirement of Section 3.13 thereof, the Company issued to the holders 124,996 warrants to purchase shares of common stock (the “Forbearance Warrants”). The Forbearance Warrants have an exercise price of $ 6.30 per share and are exercisable at any time on or after July 3, 2024 and expire in October 2029 . On August 12, 2024 the Company entered into an exchange agreement (the “Exchange Agreement") with holders (each, a “Holder”) of the Company’s 2028 Convertible Notes, pursuant to which the Company agreed to acquire an aggregate of $ 10.8 million of principal amount, plus accrued and unpaid interest, of the existing 2028 Convertible Notes in exchange for $ 10.8 million of a series of a new tranche of 2028 Convertible Notes ("Payment Priority Notes") on August 15, 2024 ("the Initial Closing Date"). The Payment Priority Notes are the Company’s senior secured obligations with payment priority over the existing 2028 Convertible Notes. The Company also entered into note purchase agreements with the Holders (together with the Exchange Agreement, the "Debt Exchange Transactions") to purchase $ 16.0 million in aggregate principal amount of Payment Priority Notes from the Company for cash at par value on the Initial Closing Date. Once per month, up to three times, the Company may request that the Holders purchase additional Payment Priority Notes (a “Subsequent Draw”) with a purchase price of $ 4.0 million in a subsequent clos ing for a maximum amount of $ 16.0 million. To the extent that a Holder acquires additional Payment Priority Notes pursuant to a Subsequent Draw, each Holder shall have the right to exchange additional 2028 Convertible Notes for a series of Payment Priority Notes concurrently with the closin g of such Subsequent Draw. Additionally, as part of the agreements, the Holders were granted warrants to purchase 677,777 shares of common stock with an exercise price of $ 6.00 at the initial closing and will be granted additional warrants to purchase shares of common stock to in connection with Subsequent Draws. In connection with the Exchange Agreement, the Company also agreed to amend an aggregate of 2,291,445 outstanding warrants held by Holders to lower the exercise price to $ 6.00 per share. The Debt Exchange Transaction with a related party holder (see Note 7) constitutes a TDR under ASC 470 . No restructuring gain was recorded because the net carrying amount of 2028 Convertible Notes was less than the undiscounted future cashflows of the restructured Notes. The Debt Exchange Transactions with two of the Holders were considered debt extinguishments under ASC 470. As a result, the Company recorded a loss on debt extinguishment of $ 8.7 million for the three and nine months ended September 30, 2024. The Debt Exchange Transaction with the fourth Holder was considered a debt modification under ASC 470. In September 2024, as part of the Debt Exchange Transactions signed in August 2024 (the "September Drawdown"), the Holders purchased an additional $ 4.0 million aggregate principal amount of Payment Priority Notes and were granted warrants to purchase an aggregate of 675,552 shares of common stock with an exercise price of $ 6.00 per share. Additionally, the Company acquired an aggregate of $ 10.8 million principal amount, plus accrued and unpaid interest thereon, of the existing 2028 Notes in exchange for $ 10.8 million Payment Priority Notes. The September Drawdown with a related party holder (see Note 7 ) constitutes a TDR under ASC 470. No restructuring gain was recorded because the net carrying amount of 2028 Convertible Notes was less than the undiscounted future cashflows of the restructured Notes. The September Drawdown with the other Holders was considered a debt extinguishment under ASC 470. As a result, the Company recorded a loss on debt extinguishment of $ 2.0 million for the three and nine months ended September 30, 2024. In connection with the Debt Exchange Transactions, the Company amended and restated the 2028 Convertible Notes Indenture (as so amended and restated, the “A&R Indenture”). The 2028 Convertible Notes are the Company’s senior secured obligations, and are secured by substantially all of the Company’s and its subsidiaries’ assets. The 2028 Convertible Notes are (i) senior in right of payment to the Company’s existing and future senior, unsecured indebtedness to the extent of the value of the collateral; and (ii) senior in right of payment to the Company’s existing and future indebtedness that is expressly subordinated to the 2028 Convertible Notes. At any time, noteholders may convert their 2028 Convertible Notes at their option into shares of the Company’s common stock, together, if applicable, with cash in lieu of any fractional share, at the then-applicable conversion rate. The initial conversion rate is 64.1026 shares of common stock per $1,000 principal amount of 2028 Convertible Notes, which represents an initial conversion price of approximately $ 15.60 per share of common stock. The A&R Indenture reset the conversion rate to 132.1571 shares of common stock per $1,000 principal amount of 2028 Convertible Notes, which represents a conversion price of approximately $ 7.56675 per share of common stock. Noteholders that convert their 2028 Convertible Notes will be entitled to an additional premium payment representing the amount of certain of the remaining interest payments on the 2028 Convertible Notes as specified in the 2028 Convertible Notes Indenture. The conversion rate and conversion price will be subject to customary adjustments upon the occurrence of certain events. The 2028 Convertible Notes are redeemable, in whole and not in part, at the Company’s option at any time on or after December 19, 2024 , and in some circumstances prior to that date, at a cash redemption price equal to the principal amount of the 2028 Convertible Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, but only if the last reported sale price per share of the Company’s common stock exceeds 150 % of the conversion price on (i) each of at least 20 trading days, whether or not consecutive, during the 30 consecutive trading days ending on, and including, the trading day immediately before the date the Company sends the related redemption notice; and (ii) the trading day immediately before the date the Company sends such notice. If certain corporate events that constitute a “Fundamental Change” (as defined in the A&R Indenture) occur, then noteholders may require the Company to repurchase their Notes at a cash repurchase price equal to the principal amount of the 2028 Convertible Notes to be repurchased, plus accrued and unpaid interest, if any, to, but excluding, the fundamental change repurchase date. The definition of Fundamental Change includes certain business combination transactions involving the Company, the failure to raise a specified amount of equity following completion of a strategic partnership as defined in the A&R Indenture and certain de-listing events with respect to the Company’s common stock, including delisting from the Nasdaq Global Market. The A&R Indenture contains covenants restricting the Company’s ability to incur indebtedness, incur liens, make restricted payments, make asset sales and engage in transactions with affiliates, subject to certain baskets. The A&R Indenture requires the Company to maintain minimum liquidity of $ 4.0 million and to add future assets to the collateral under the Security Agreement, dated as of December 19, 2023 , among the Company, the Guarantors party thereto and GLAS Trust Company LLC, as collateral agent (the "Security Agreement") and to add future subsidiaries as guarantors under the Security Agreement. The 2028 Convertible Notes have customary provision relating to the occurrence of “Events of Default” (as defined in the A&R Indenture). As of December 31, 2023 , the Company was in compliance with all such covenants. On July 31, 2024, the holders of the 2028 Convertible Notes agreed to extend the Forbearance Agreement until August 4, 2024. The parties subsequently agreed to extend the forbearance through October 31, 2024 . As of the date of this filing, the Company was in compliance with all such covenants. The 2028 Convertible Notes have several conversion features which are required to be bifurcated upon issuance and periodically remeasured to fair value separately as an embedded derivative. The conversion features were bifurcated and recorded separately as an embedded derivative remeasured at fair value each reporting period with changes in fair value recorded in other expense , net in the consolidated statement of operations. |