| Notes Payable | 10.
Notes Payable The
Company has existing notes payable agreements with third parties, which consists of the following as of December 31, 2022 and 2021 (dollars
in thousands):
December
31, 2022
Note
Name Contractual Contractual Unpaid
Fair
Value Original
issue Net Interest
Bridge
Notes (3) October 27, 2028 10% $ 36,622 $ 264 $ (10,878 ) $ 26,008 $ 1,676
Notes
payable - China other (4) Due on Demand -% 4,997 - - 4,997 -
Auto
loans October 26, 2026 7% 100 - - 100 7
$ 41,719 $ 264 $ (10,878 ) $ 31,105 $ 1,683
December
31, 2021
Note
Name Contractual
Contractual Unpaid Fair
Value Original
issue Net
March
1, 2021 Notes (1) March 1, 2022 14% $ 55,000 $ 7,692 $ (5,997 ) $ 56,695
August
26, 2021 Notes (1) March 1, 2022 14% 30,000 1,011 (87 ) 30,924
June
9, 2021 Note 1 and Note 2 (2) December 9, 2022 -% 40,000 8,503 (9,522 ) 38,981
August
10, 2021 Optional Notes(2) February 10, 2023 15% 33,917 12,283 (11,518 ) 34,682
Notes
payable - China other(4) Due on demand -% 5,458 - - 5,458
PPP
Loan(5) April 17, 2022 1% 193 - - 193
Auto
loans October 26, 2026 7% 121 - - 121
Total
notes payable $ 164,689 $ 29,489 $ (27,124 ) $ 167,054 The
Company settled certain notes payable during the year ended December 31, 2022 as follows (dollars in thousands):
Year
ended December 31, 2022
Note
Name Contractual
Contractual
Net
carrying value at 12/31/2021 Fair
Value Payment
Premium Cash
Payment Conversion
into Class A Common Stock
March
1, 2021 Notes (1) March 1, 2022 14% $ 56,695 $ (1,695 ) $ - $ (55,000 ) $ -
August
26, 2021 Notes (1) March 1, 2022 14% 30,924 (924 ) 2,065 (32,065 ) -
June
2021 Notes (2) October 31, 2026 -% 38,981 1,019 - - (40,000 )
Optional
Notes (2) October 31, 2026 15% 34,682 (765 ) - - (33,917 )
PPP
Loan (5) April 17, 2022 1% 193 - - (193 ) -
$ 161,475 $ (2,365 ) $ 2,065 $ (87,258 ) $ (73,917 )
(1) On March 1, 2021, the Company amended the NPA to permit the issuance of additional notes payable with principal amounts up to $85.0 million. On the same day, the Company entered into notes payable agreements with Ares for an aggregate principal of $55.0 million, receiving net proceeds of $51.5 million, inclusive of a 4.00% original issue discount and $0.1 million of debt issuance costs paid directly by the lender (“March 1, 2021 Notes”). The notes payable were collateralized by a first lien on virtually all tangible and intangible assets of the Company, bore interest at 14% per annum and matured on March 1, 2022. On February 25, 2022, the Company repaid the $55.0 million principal amount of the March 1, 2021 Notes with accrued interest of $7.7 million.
(2) In addition, in conjunction with the issuance of the notes payable, the Company committed to issue the Ares Warrants to the lender to purchase the Company’s Class A Common Stock no later than August 11, 2021, or if earlier, 15 days after consummation of the Business Combination. The warrants have a term of six years, be equal to 0.20% of the fully diluted capitalization of FFIE’s Class A Common Stock and have an exercise price of $10.00 per share. The commitment to issue the warrants meets the definition of a derivative, was accounted for as a liability, and will be marked to fair value at the end of each reporting period with changes in fair market value recorded in the Consolidated Statements of Operations and Comprehensive Loss. The Company determined the commitment to issue warrants was a liability as of March 1, 2021, and estimated the fair value of the warrants to be $5.0 million using the Black-Scholes option-pricing model (see Note 8, Fair Value of Financial Instruments). On
August 5, 2021, the Company issued Ares warrants to purchase 670,092 shares of Class A Common Stock at an exercise price of $10.00 per
share. The warrants are exercisable at any time within 6 years of the issuance date. Upon their issuance, the warrants met all requirements
for equity classification under the equity scope exception in ASC 815-40 as the number of shares underlying the warrants and their exercise
price were fixed. Accordingly, the Company determined the fair value of the Ares Warrants to be $2.5 million on August 5, 2021 and recorded
the value as a discount to the Notes Payable and an increase in APIC in the Consolidated Balance Sheets as of December 31, 2021. On
August 26, 2021, the Company exercised its option under the March 1, 2021 notes payable agreement with Ares to draw an additional principal
amount of $30.0 million which matured on March 1, 2022 (“August 26, 2021 Notes”). As the August 26, 2021 Notes mature in
less than one year, according to the terms of the amended NPA, the Company expected to repay them with payment premium of 14% (“Payment
Premium”). The
notes payable are collateralized by a first lien on virtually all tangible and intangible assets of the Company and bear interest at
14% per annum and mature on March 1, 2022. The August 26, 2021 Notes matured in less than one year, according to the terms of the amended
NPA, and a payment premium of 14% (“Payment Premium”). The Company has elected the fair value option to value the notes as
the notes include features, such as a contingently exercisable put option, which meet the definition of an embedded derivative. Upon
the Closing of the Business Combination, the cash requirement prescribed in the NPA increased from $5.0 million to $25.0 million. The
Company has classified $25.0 million as Restricted Cash on its Consolidated Balance Sheet as of December 31, 2021. In the first quarter
of 2022 all restrictions on cash were resolved. On
February 25, 2022, the Company repaid the $30.0 million principal amount of the August 26, 2021 Notes, with accrued interest of $2.1
million and Payment Premium of $2.1 million. The
settlement of the March 1, 2021 Notes and August 26, 2021 Notes are summarized below (dollars in thousands):
March
1, 2021 Notes December
31, December
31,
Outstanding
principal $ - $ 55,000
Accrued
interest - 6,455
Interest
expense for the year ended December 31, 2022 1,266 -
Principal
payments 55,000 -
Interest
payments 7,721 -
August
26, 2021 Notes December
31, December
31,
Outstanding
principal $ - $ 30,000
Accrued
interest - 1,473
Interest
expense for the year ended December 31, 2022 662 -
Principal
payments 30,000 -
Interest
payments 2,135 -
Payment
Premium payments 2,065 -
(2) On June 9, 2021, the Company amended the NPA to permit the issuance of two notes payable, each with a principal value of $20.0 million (“June 2021 Notes”), to a US-based investment firm. The Company received net proceeds of $35.6 million as part of the June 2021 Notes inclusive of $4.2 million of original issuance discount and $0.2 million of debt issuance costs paid by the lender. The June 2021 Notes are subordinate to the notes payable issued to Ares on March 1, 2021 and August 26, 2021 (see (1) above) and senior in priority to the notes payable issued under the NPA prior to September 9, 2020. The June 2021 Notes mature on December 9, 2022, and do not bear interest unless extended beyond its maturity date by the US-based investment firm, in which case, the June 2021 Notes will bear interest at 10% per annum starting upon their original maturity. Each of the June 2021 Notes are subject to an original issue discount of 8% and 13%, respectively. One of the June 2021 Notes with a principal amount of $20.0 million contains a conversion premium that, within a year of a Qualified SPAC Merger, the then outstanding principal and accrued interest of the notes playable plus a 30% premium may convert into Class A Common Stock of the Company, at the election of the US-based investment firm. In
conjunction with the issuance of the June 2021 Notes, the Company issued warrants to the US-based investment firm to purchase up to 1,500,000
shares of the Company’s Class A Common Stock for $10.00 per share and an expiration date of June 9, 2028, which were adjusted for
down-round provisions in the original warrant agreements. The fair value of the warrants of $5.1 million upon issuance was recorded in
APIC ( see Note 8, Fair Value of Financial Instruments As
part of the amendment to the NPA from June 9, 2021, on or prior to the 12-month anniversary of the Qualified SPAC Merger, the US-based
investment firm has the option to purchase additional notes for up to $40.0 million and if drawn, would be subject to similar original
issue discounts, warrant provisions, and conversion premiums as the June 2021 Notes. The warrants issued with the June 2021 Notes and
the Optional Notes, along with the notes previously issued to the same lender, are provided with anti-dilution protection. On
August 10, 2021, in accordance with the NPA, the US-based investment firm exercised its option to purchase optional notes (“Optional
Notes”) with principal of $33.9 million, whose option was in conjunction with the original September 9, 2020, January 13, 2021
and March 12, 2021 notes payable. The Company received net proceeds of $30.4 million, which is the total principal amount of $33.9 million
net of 8% original issue discount and $0.8 million of issuance costs. The Optional Notes bear interest at 15% beginning December 2021,
and had a maturity date of February 10, 2023. The Optional Notes are convertible at the option of the holder with a conversion price
of $10.00 per share. The Optional Notes contain a conversion premium, effective until August 10, 2022, according to which the outstanding
principal and accrued interest of the notes payable at the time of liquidation plus a 30% premium are convertible into shares of Class
A Common Stock. The Company elected the fair value option to measure the Optional Notes ( see Note 8, Fair Value of Financial Instruments In
conjunction with the issuance of the Optional Notes, the Company issued the US-based investment firm warrants to purchase up to 1,187,083
shares of Class A Common Stock with an exercise price of $10.00 per share. The warrants are exercisable within seven years of their original
issuance dates. The fair value of the warrants of $8.0 million upon issuance was recorded in APIC ( see Note 8, Fair Value of Financial
Instruments In
January 2022, the Company defaulted on the June 2021 Notes and the Optional Notes. The holders of the Optional Notes waived the default
during 2022.
June
9, 2021 Note 1 As
of and
(dollars
in thousands) 2021
Outstanding
principal $ 20,000
Original
issue discount and debt issuance costs 1,797
Proceeds 18,203
June
9, 2021 Note 2 As
of and
(dollars
in thousands) 2021
Outstanding
principal $ 20,000
Original
issue discount and debt issuance costs 2,600
Proceeds 17,400
August
10, 2021 Optional Notes As
of and
(dollars
in thousands) 2021
Outstanding
principal $ 33,917
Accrued
interest 183
Interest
expense 183
Original
issue discount and debt issuance costs 3,542
Proceeds 30,375 On
July 26, 2022, the Company entered into an agreement (the “ATW July Amendment”) with entities affiliated with ATW Partners
LLC (collectively, the “Investors”), to extend the maturity date, adjust the conversion price and otherwise amend the terms
(as described further below) of the Optional Notes and the June 2021 Notes (together, “ATW NPA Notes”). Pursuant
to the ATW July Amendment:
(a) the
maturity date of each of the ATW NPA Notes was extended to October 31, 2026. This extension does not, however, defer the accrual of interest
to the new maturity date. Interest shall accrue on the Notes at 10% per annum following February 10, 2023;
(b) the
conversion price of each of the ATW NPA Notes was adjusted to equal the lesser of (x) $10, (y) 95% of the per share daily volume weighted
average prices (“VWAP”) of the Company’s Class A Common Stock during the 30 trading days immediately prior to the applicable
conversion date and (z) the lowest effective price per share of Class A Common Stock (or equivalents) issued or issuable by the Company
in any financing of debt or equity after July 26, 2022, subject to possible adjustment as set forth therein (the “Set Price”).
However, from July 26, 2022 to December 30, 2022, the conversion price of each of the ATW NPA Notes is equal to the lesser of (i) the
Set Price, and (ii) 92% of the lowest of the VWAP during the seven (7) trading days immediately prior to the applicable conversion date.
(c) a
“forced conversion” feature was added to each of the ATW NPA Notes that allows the Company, on or after December 31, 2022,
to cause the conversion of all or part of, in the aggregate among all of the ATW NPA Notes, up to $35.0 million principal amount of the
ATW NPA Notes less any principal amount of the ATW NPA Notes voluntarily converted by the holder thereof after July 26, 2022, subject
to certain conditions as set forth in the ATW July Amendment; and
(d) the
date by which the Investors must exercise their option to purchase additional June 2021 Notes of up to $40.0 million from the Company
under the terms of the NPA was extended to July 20, 2023. The
ATW July Amendment was accounted for as a troubled debt restructuring under ASC 470-60, because the Company was experiencing financial
difficulty and the conversion mechanism results in the effective borrowing rate decreasing after the restructuring which was determined
to be a concession. Since the future undiscounted cash flows of the restructured notes payable exceed the net carrying value of the original
note payable due to the maturity date extension, the modification was accounted for prospectively with no gain or loss recorded in the
Consolidated Statements of Operations and Comprehensive Loss. Interest
expense on the ATW NPA Notes is computed using the contractual interest rate. The Company concluded that the conversion feature does
not require bifurcation based on the derivative accounting scope exception in ASC 815 for certain contracts involving an entity’s
own equity. On
October 10, 2022 and on October 19, 2022, the remaining ATW NPA Notes in the aggregate amount of $6.7 million were exchanged for 11,496,868
shares of Class A Common Stock of the Company. The
settlement of the June 2021 Notes and Optional Notes are summarized below (dollars in thousands):
Optional Notes December
31, December
31,
Outstanding principal $ - $ 33,917
Accrued interest - 183
Interest expense for the year ended December 31, 2022 2,572 -
Principal conversion into Class A Common Stock 33,917 -
Interest payments 2,756 -
June 2021 Notes December
31, December
31,
Outstanding principal $ - $ 40,000
Accrued interest - -
Interest expense for the year ended December 31, 2022 - -
Principal conversion into Class A Common Stock 40,000 -
Interest payments - -
(3) On August 14, 2022, the Company entered into a Securities Purchase Agreement (“SPA”) with certain entities affiliated with ATW Partners LLC and RAAJJ Trading LLC (and together with Senyun, as defined below, the “Purchasers”) to issue and sell the Company’s senior secured convertible notes (the “Bridge Notes”) in three tranches aggregating to $52.0 million in principal and maturing on August 14, 2026 (subsequently extended to October 27, 2028). The Bridge Notes are subject to an original issue discount of 10%, and are convertible, along with any interest accrued, into shares of Class A Common Stock at a conversion price equal to $2.69 (or $2.2865 for the initial tranche) (“Conversion Price”), subject to a full ratchet anti-dilution protection. When calculating the shares issuable upon conversion, the converted amount shall be decreased by 50% of the original issue discount pertaining to such amount. As part of this financing round, the Purchasers funded $52.0 million, less total original issuance discounts of $5.2 million equating to net proceeds of $46.8 million. The
Bridge Notes bear interest of 10% per annum payable quarterly and on each conversion and on the maturity date in cash or in shares of
Class A Common Stock. Unless earlier paid, the Bridge Notes entitle the Purchasers, at each conversion date, to an interest make-whole
(“Make-Whole Amount”), in a combination of cash or Class A Common Stock at the Company’s discretion, in the amount
of the interest that would have been payable if such converted amount was held to maturity based on an interest rate of 15% per annum.
The conversion price of interest is the lesser of (a) the Conversion Price or (b) 90% of the lowest VWAP for the five consecutive trading
days. The
Bridge Notes are secured by the grant of a second lien upon substantially all of the personal and real property of the Company and its
subsidiaries, as well as guarantee by substantially all of the Company’s domestic subsidiaries. Total
commitments under the SPA shall not exceed $300.0 million, however each Purchaser has the option within 12 months from November 12, 2022
(the “Form S-1 Effective Date”) to purchase additional senior secured convertible notes under similar terms for a total potential
commitments of up to $300.0 million (“Tranche B Notes”). On
September 23, 2022, the SPA was amended (the “SPA Amendment”), pursuant to which the Purchasers agreed to accelerate their
funding obligations, with $7.5 million aggregate principal amount (the “Third Bridge Notes”) being funded and issued on the
same day, and the remaining $7.5 million aggregate principal amount (the “Fourth Bridge Notes”) being funded and issued on
October 10, 2022. The Third Bridge Notes and Fourth Bridge Notes are convertible into shares of Class A Common Stock at a conversion
price of $1.05 per share, mature on October 27, 2028, and are otherwise subject to the same terms and conditions in the SPA as applicable
to the Bridge Notes described therein. Additionally,
the SPA Amendment modified the conversion price of $25.0 million of principal of the Bridge Notes, which were funded on August 14, 2022,
to $1.05 per share. The Company evaluated the SPA Amendment in accordance with ASC 470-50, Debt On
September 25, 2022, the Company entered into a Joinder and Amendment Agreement to the SPA (the “Joinder”) with Senyun International
Ltd., an affiliate of Daguan International Limited (“Senyun”), pursuant to which Senyun agreed to purchase incremental notes
under the SPA in an aggregate principal amount of up to $60.0 million. Senyun has all of the same rights and obligations as a Purchaser
under the SPA. Pursuant
to the Joinder and following the completion of the Company’s due diligence of Senyun and its financing sources. As of December
31, 2022, Senyun completed funding totaling $30.0 million, which after original issue discount resulted in the receipt of $27.0 million. The
Company elected the fair value option afforded by ASC 825, Financial Instruments As
part of the SPA, and through the year ended December 31, 2022, the Company issued the Purchasers a total of 16,392,267 warrants (“Bridge
Warrants” or “SPA Warrants”). Upon their issuance, the Bridge Warrants had an exercise price of $5.0 per share, subject
to full ratchet anti-dilution protection and other adjustments, exercisable for seven years from the date of issuance (see Note
14, Stockholders’ Equity As
of December 31, 2022, the Company determined that the fair value of the Bridge Notes and Bridge Warrants was $26.0 million and $95.1
million, respectively, resulting in a respective gain and loss in Changes in fair value measurements in the Consolidated Statement of
Operations and Comprehensive Loss of $24.7 million and $95.1 million for the year ended December 31, 2022. During
the year ended December 31, 2022 total Bridge Notes principal which was converted to equity totaled $45.4 million. Total notes payable
issuance costs incurred for the year ended December 31, 2022 totaled $3.8 million. Conversions
of ATW NPA Notes and Bridge Notes, as applicable, to Additional paid in capital for the years ended December 31, 2022 and 2021 totaled
$99.5 million and $98.4 million, respectively.
(4) The
Company issued notes with various third parties through its operations in China. In
2017 and 2018, the Company borrowed $4.4 million through notes payable from various Chinese lenders. As a result of the September 2020
Modification of the notes payable, the Company recorded an immaterial gain on extinguishment and immaterial accretion of the discount
in the Consolidated Statements of Operations and Comprehensive Loss during the year ended December 31, 2021. In
2019, the Company entered into a $0.7 million note payable with an employee. During the year ended December 31, 2021, the Company reclassified
the $0.7 million carrying value of this loan from related party notes payable to notes payable when the employee left the employment
of the Company. The notes payable are payable on demand by the lenders, do not have a stated interest rate, have no covenants, and are
unsecured.
As of and for
(dollars in thousands) 2021
Outstanding principal $ 5,458
Foreign exchange (gain) loss on principal 133
Reclassification from related party notes payable 730 The
Company settled select notes payable through the conversion of notes payable into Class A Common Stock just prior to the Business Combination
and a combination of cash payments and the commitment to issue Class A Common Stock in settlement of outstanding principal plus accrued
interest and conversion premiums pursuant to the Closing of the Business Combination, as follows (dollars in thousands):
Year ending December 31, 2021
Note Name Net Carrying Value at 12/31/2020 Borrowings, net of OID Fair Value Measurement Adjustments Accrued Interest at Settlement FX and Other Cash Payment Equity Settlement Net Carrying Value at 12/31/2021 Loss (Gain) at Settlement Interest Expense for the year
ended December 31, 2021
Settlement prior to the Business
Combination:
Note payable $ 57,293 $ - $ - $ 17,177 $ (1,293 ) $ - $ (73,177 ) $ - $ - $ 3,408
Notes payable 19,100 - - 6,098 - - (25,198 ) - - 1,281
Subtotal settlements prior to the
Business Combination 76,393 - - 23,275 (1,293 ) - (98,375 ) - - 4,689
Settlements in the Business Combination:
Notes payable - NPA 21,059 - 104 3,614 - (17,636 ) (7,141 ) - 2,699 976
Notes payable - China 3,659 - - 2,713 56 - (6,428 ) - 2,430 374
Notes payable - China 4,807 - - 757 110 - (5,674 ) - 2,145 164
Note payable 17,712 - 1,988 - 667 - (20,367 ) - 7,698 -
January 13 and March 12, 2021 Notes (6) - 16,790 6,935 - - - (23,725 ) - 8,968 -
Note payable 20,972 - 138 270 667 (18,992 ) (3,055 ) - 1,155 1,334
January 13 and March 8, 2021 Notes (7) - 8,750 4,901 82 - (11,582 ) (2,151 ) - 813 632
Subtotal
settlements in the Business Combination 68,209 25,540 14,066 7,436 1,500 (48,210 ) (68,541 ) - 25,908 3,480
PPP Loan (5) 9,168 - - - (8,975 ) - - 193 (8,975 ) 92
Total $ 153,770 $ 25,540 $ 14,066 $ 30,711 $ (8,768 ) $ (48,210 ) $ (166,916 ) $ 193 $ 16,933 $ 8,261 Conversion
of Notes Payable Just
prior to the Business Combination, the Company converted notes payable with an aggregate principal balance of $75.1 million and accrued
interest of $23.3 million into 7,688,153 shares of Class A Common Stock. Closing
of the Business Combination As
described in Note 3, Business Combination
(5) On
April 17, 2020, the Company received loan proceeds from East West Bank of $9.2 million under
the Paycheck Protection Program (“PPP”). The PPP was established as part of the
Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) and provided
for loans to qualifying businesses. The loans and accrued interest are forgivable so long
as the borrower uses the loan proceeds for eligible purposes, including payroll, benefits,
rent, and utilities, as described in the CARES Act. The amount of loan forgiveness will be
reduced if the borrower terminates employees or reduces salaries. The unforgiven portion
of the PPP loan is payable over two years at an interest rate of 1%, with a deferral of payments
for the later of the first six months or when the amount of the loan forgiveness is determined.
The Company used the proceeds for purposes consistent with the PPP requirements. The note
matured on April 17, 2022, had no covenants, and was unsecured. The
Company was notified by East West Bank that a principal amount of $9.0 million as well as accrued interest of $0.2 million relating to
the PPP Loan had been forgiven by the Small Business Administration as of December 31, 2021. The Company recorded the forgiveness of
the principal and interest in Loss on Settlement of Related Party Notes Payable, Notes Payable, and Vendor Payables in trust, net in
the Consolidated Statements of Operations and Comprehensive Loss for the year ended December 31, 2021. The Company paid the remaining
principal and accrued interest in an aggregate amount of $0.2 million in April 2022.
(6) On January 13, 2021, the Company entered into a notes payable agreement under the NPA, (“January 13 Notes”) with a US-based investment firm for total principal of $11.3 million, receiving net proceeds of $9.9 million, net of an 8% original issue discount and $0.5 million of debt issuance costs paid directly by the lender. The note payable is collateralized by a first lien on virtually all tangible and intangible assets of the Company and bears interest at 0% per annum. On March 12, 2021, the Company and the US-based investment firm entered into a notes payable agreement (“March 12 Notes”) for an aggregate principal amount of $7.0 million, receiving net proceeds of $6.4 million, net of an 8% original issue discount. The terms of this note payable were the same as the note payable issued on January 13, 2021. The Company elected the fair value option for these note payable because the inclusion of a conversion feature that allowed the lenders to convert the notes payable into Class A Common Stock after the closing of the Business Combination. In
conjunction with the issuance of the January 13 Notes and March 12 Notes, the Company issued warrants to purchase 662,083 shares of the
Class A Common Stock with an exercise price of $10.00 per share, as adjusted for certain down-round provisions. The warrants were issued
with a term of seven years. The Company recorded the fair value of the warrants in APIC in accordance with the derivative accounting
scope exception in ASC 815 for certain contracts involving an entity’s own stock. The Company estimated the fair value of the warrants
to be $2.0 million using the Black-Scholes option-pricing model (see Note 8, Fair Value of Financial Instruments In
conjunction with the Closing of the Business Combination, the Company issued Class A Common Stock to settle the note payable, as follows
(dollars in thousands).
As of and
January 13 and March 12, 2021 Notes 2021
Outstanding principal $ -
Original issue discount and debt issuance costs 1,940
Principal and conversion premium settled with equity 23,725
Proceeds 16,310
(7) On January 13, 2021, the Company amended the NPA to permit the issuance of additional secured convertible notes payable and issued $3.8 million of notes payable to Birch Lake (“BL Notes”), receiving net proceeds of $3.3 million, net of a 6.50% original issue discount and $0.2 million of debt issuance costs paid directly by the lender. The BL Notes accrued interest at 8% per annum. The BL Notes contained a liquidation premium that ranges from 35% to 45% depending on the timing of settlement, with 50% of this premium convertible into equity. The Company determined that the feature to settle the BL Notes at a premium upon the occurrence of a default, change in control, or a Qualified SPAC Merger was a contingently exercisable put option with a liquidation premium and represents an embedded derivative. The Company elected the fair value option to measure this note payable (see Note 8, Fair Value of Financial Instruments On
March 8, 2021, the Company entered into a notes payable agreement under the NPA with Birch Lake for total principal of $5.6 million,
receiving net proceeds of $5.2 million, inclusive of a 6.50% original issue discount and $0.3 million of debt issuance costs paid directly
by the lender. The notes payable accrued interest at 15.75% per annum. The notes payable contained a liquidation premium that ranges
from 42% to 52% depending on timing of settlement, with 50% of the premium convertible into equity. The Company determined that the feature
to settle the notes payable at a premium upon the occurrence of a default, change in control, or a Qualified SPAC Merger was a contingently
exercisable put option with a liquidation premium and represents an embedded derivative. The Company elected the fair value option to
measure these notes payable (see Note 8, Fair Value of Financial Instruments In
conjunction with the Closing of the Business Combination, the Company paid cash and issued Class A Common Stock to settle the notes payable,
as follows (dollars in thousands).
As of and
January 13 and March 8, 2021 Notes 2021
Outstanding principal $ -
Original issue discount and debt issuance costs 1,132
Interest expense 632
Principal conversion premium settled with equity 2,069
Interest settled with equity 82
Principal and conversion premium payments in cash 11,582
Interest payments in cash 550
Proceeds 8,218 Third
and Fourth Amendments to the SPA On
October 24, 2022, the Company entered into a Limited Consent and Third Amendment to the SPA (the “Third Amendment”), pursuant
to which the maturity date for the Bridge Notes was extended from August 14, 2026 to October 27, 2028. In addition, pursuant to the Third
Amendment, each Purchaser and the Agent waived certain defaults and events of default under the SPA, any notes issued pursuant to the
SPA and other related documents. The amendment was accounted for as a troubled debt restructuring under ASC 470-60, Debt - Troubled
Debt Restructurings by Debtors On
November 8, 2022, the Company entered into a Limited Consent and Amendment to the SPA (the “Fourth Amendment”), pursuant
to which the parties agreed that (i) in no event will the effective conversion price of any interest or interest make-whole amount payable
in shares of Class A Common Stock in respect of Bridge Notes issued or issuable under the SPA be lower than $0.21 per share of Class
A Common Stock, and (ii) in order for the Company to make payment of any interest or interest make-whole amount in shares of Class A
Common Stock, certain price and volume requirements must be met, namely that (x) the VWAP of the Class A Common Stock is not less than
$0.21 per share on any trading day during the preceding seven trading day period, and (y) the total volume of the Class A Common Stock
does not drop below $1.5 million on any trading day during the same period (in each case, as adjusted for any stock splits, stock dividends,
stock combinations, recapitalizations or other similar transactions). The amendment was accounted for as a troubled debt restructuring
under ASC 470-60, Debt - Troubled Debt Restructurings by Debtors Senyun
Amendment On
December 28, 2022 the Company entered into a Letter Agreement and Amendment to the SPA (the “Senyun Amendment”) pursuant
to which the conversion rate of notes totaling $19.0 million was lowered from $1.05 to $0.89 and future funding timeframes were renegotiated.
As the terms of this modification were determined to not be substantially different, the new debt is accounted for as a continuation
of the original debt at fair value using the now lower conversion rate. As a result of the new conversion rate the Company was obligated
for the year then ended to issue additional shares to Senyun based on the lower conversion rate. The Company accounted for this obligation
by crediting Other current liabilities and debiting Additional paid in capital for an amount of $0.9 million. Fair
Value of Notes Payable Not Carried at Fair Value The
estimated fair value of the Company’s notes payable not carried at fair value, using inputs from Level 3 under the fair value hierarchy,
was $4.9 million and $5.4 million as of December 31, 2022 and 2021, respectively. These amounts relate to the Notes Payable - China other
and Auto loan balances. Schedule
of Principal Maturities of Notes Payable The
future scheduled principal maturities of notes payable as of December 31, 2022 are as follows (dollars in thousands):
Due on demand $ 4,997
2026 100
2028 36,622
41,719 |
