CONVERTIBLE NOTES | NOTE 9. CONVERTIBLE NOTES Convertible Notes The information presented in this section summarizes the data for all of the Company’s convertible notes. The carrying value of the convertible notes at June 30, 2023 and December 31, 2022 consisted of the following (in thousands): June 30, December 31, 2023 2022 Outstanding principal at par $ 67,619 $ 56,595 Debt premium 5,936 — Unamortized debt discount (37,606) — Unamortized debt issuance costs (2,934) (182) Net carrying amount $ 33,015 $ 56,413 At June 30, 2023 and December 31, 2022 the convertible notes were classified as follows (in thousands): June 30, December 31, 2023 2022 Current portion of convertible notes $ 726 $ 56,413 Non-current portion of convertible notes 32,289 — Total convertible notes $ 33,015 $ 56,413 Interest expense during the three and six months ended June 30, 2023 and 2022 was as follows (in thousands): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Contractual coupon interest $ 656 $ 666 $ 892 $ 1,449 Amortization of debt discount and issuance costs 510 154 692 265 Total interest expense on convertible notes $ 1,166 $ 820 $ 1,584 $ 1,714 (Loss) gain on extinguishment of exchanged convertible notes during the three and six months ended June 30, 2023 and 2022 was as follows (in thousands): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 (Loss) gain on extinguishment $ (6,550) $ 199 $ (6,550) $ 3,565 2.50% Convertible Senior Notes due 2023 (the “2.50% Notes”) On March 27, 2018, the Company issued $150.0 million aggregate principal amount of 2.50% Notes. In connection with the offering of the 2.50% Notes, the Company granted the initial purchasers of the Notes a 13-day option to purchase up to an additional $22.5 million aggregate principal amount of the 2.50% Notes on the same terms and conditions. On April 4, 2018 the option was partially exercised, which resulted in $21.5 million of additional proceeds, for total proceeds of $171.5 million. The 2.50% Notes matured on March 15, 2023 (the “Maturity Date”). As of June 30, 2023, approximately $0.7 million aggregate principal amount of 2.50% Notes remains outstanding and in default accruing interest at 2.5% per annum. The Company incurred issuance costs related to the issuance of the 2.50% Notes which were amortized over the five-year contractual term of the 2.50% Notes using the effective interest method. The effective interest rate on the 2.50% Notes, including accretion of the 2.50% Notes to par was 3.2%. Holders had the option to convert the Notes in multiples of $1,000 principal amount at any time prior to December 15, 2022, but only in the following circumstances: • if the Company’s stock price exceeds 130% of the conversion price for 20 of the last 30 trading days of any calendar quarter after June 30, 2018; • during the 5 business day period after any 5 consecutive trading day period in which the 2.50% Notes’ trading price is less than 98% of the product of the common stock price times the conversion rate; or • the occurrence of certain corporate events, such as a change of control, merger or liquidation. At any time on or after December 15, 2022, a holder could have converted its 2.50% Notes in multiples of $1,000 principal amount. Holders of the 2.50% Notes who convert their 2.50% Notes in connection with a make-whole fundamental change (as defined in the Indenture) were, under certain circumstances, entitled to an increase in the conversion rate. In addition, in the event of a fundamental change or event of default prior to the Maturity Date, holders, subject to certain conditions, had the right, at their option, to require the Company to repurchase for cash all or part of the 2.50% Notes at a repurchase price equal to 100% of the principal amount of the 2.50% Notes to be repurchased, plus accrued and unpaid interest up to, but excluding, the repurchase date. As of June 30, 2023, none of the 2.50% Notes outstanding are convertible pursuant to their original terms. None of the 2.50% Notes converted prior to the Maturity Date. As of June 30, 2023, the Company will continue to accrue interest on the remaining outstanding 2.50% Notes. As of June 30, 2023 the amount of accrued interest on the remaining outstanding 2.50% Notes is immaterial. The carrying value of the 2.50% Notes at June 30, 2023 and December 31, 2022 consisted of the following (in thousands): June 30, December 31, 2023 2022 Outstanding principal at par $ 726 $ 56,595 Unamortized debt issuance — (182) Net carrying amount $ 726 $ 56,413 At June 30, 2023 and December 31, 2022 the 2.50% Notes were classified as follows (in thousands): June 30, December 31, 2023 2022 Current portion of convertible notes $ 726 $ 56,413 Non-current portion of convertible notes — — Total convertible notes $ 726 $ 56,413 Interest expense for the 2.50% Notes during the three and six months ended June 30, 2023 and 2022 were as follows (in thousands): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Contractual coupon interest $ 321 $ 666 $ 557 $ 1,449 Amortization of debt issuance costs — 154 182 265 Total interest expense on convertible notes $ 321 $ 820 $ 739 $ 1,714 Forbearance Agreement On March 9, 2023, the Company entered into the Forbearance Agreement, which became effective on March 13, 2023, with the Ad Hoc Noteholder Group holding approximately 85% of the Company’s outstanding 2.50% Notes, the Trustee and any other owner of the 2.50% Notes who executes and delivers to the Company a joinder to the Forbearance Agreement (collectively with the Trustee and Ad Hoc Noteholder Group, the “Counterparties”). Pursuant to the Forbearance Agreement, the members of the Ad Hoc Noteholder Group agreed, and directed the Trustee, to forbear from exercising their rights and remedies under the Indenture in connection with certain events of default under the Indenture, such as (i) failure to timely pay in full the principal of any 2.50% Note when due and payable on March 15, 2023, (ii) failure to pay any interest on any 2.50% Note when due and payable, (iii) failure to convert any 2.50% Notes, (iv) default under any agreement with outstanding indebtedness for money borrowed in excess of $15.0 million and (v) any other breach, default or event of default under the Indenture arising from the failure of the Company to timely pay in full the principal of any 2.50% Note when due and payable on the Maturity Date. The Forbearance Agreement was initially effective for the period commencing on March 13, 2023 and ending on April 21, 2023, the date of the Restructuring Support Agreement. The holders of the 2.50% Notes that joined the Forbearance Agreement received a fee (the “Forbearance Premium”) equal to $5.00 per $1,000 principal amount of the 2.50% Notes held by such party, by executing and delivering a joinder to the Forbearance Agreement to the Company. During the six months ended June 30, 2023 the Ad Hoc Noteholder Group received $0.2 million in Forbearance Premiums. The Forbearance Premium of $0.2 million paid during the six months ended June 30, 2023, was capitalized and amortized to expense for the period commencing on March 13, 2023 through March 31, 2023. Restructuring Support Agreement and June 2023 Exchange Transaction On June 9, 2023, the Company completed the Restructuring Transactions contemplated by the Restructuring Support Agreement whereby the Company (i) exchanged approximately $55.9 million aggregate principal amount of the 2.50% Notes for approximately $56.9 million aggregate principal amount of newly issued 5.00% Notes, which was inclusive of additional 5.00% Notes in respect of interest accrued on the 2.50% Notes from September 15, 2022, for $1.0 million; (ii) issued and sold an additional $10.0 million aggregate principal amount of 5.00% Notes; (iii) repurchased the Secured Note, plus accrued interest, by issuing approximately 3.4 million shares of the Company’s common stock; (iv) issued approximately 0.4 million shares of the Company’s common stock upon conversion of all of the Company’s outstanding Series A Preferred Stock; (v) amended the March 2022 Securities Purchase Agreement (as defined in Note 17) and issued and sold approximately 0.5 million shares of the Company’s common stock for proceeds of $4.0 million; and (vi) entered into a new securities purchase agreement with the Schuler Trust pursuant to which the Schuler Trust is required, prior to December 15, 2023, to either purchase an aggregate of $10 million of the Company’s common stock from the Company or to backstop an underwritten public offering by the Company of its common stock for aggregate proceeds of $10 million, at the Company’s option. See Note 10, Long-Term Debt Related-Party, Note 17, Stockholders' Equity and Note 18, Related-Party Transactions for additional information. As described above, on June 9, 2023, the Company entered into an exchange agreement (the “June 2023 Exchange Transaction”) with certain holders of the Notes. On June 9, 2023 the June 2023 Exchange Transaction was accounted for as an extinguishment which resulted in the $56.9 million in aggregate principal of the 5.00% Notes replacing the $55.9 million of the 2.50% Notes and the $1.0 million of accrued interest expense. The 5.00% Notes were recorded at fair value on initial measurement, while the $55.9 million of the 2.50% Notes and the $1.0 million of accrued interest expense was retired. During the three and six months ended June 30, 2023 the extinguishment of the 2.50% Notes resulted in a loss of $6.6 million. See further discussion of the 5.00% Notes below. March 2022 Exchange Transaction On March 21, 2022, the Company entered into a privately negotiated exchange agreement (the “March 2022 Exchange Agreement”) with a holder of the 2.50% Notes. Under the terms of the March 2022 Exchange Agreement, the note holder agreed to exchange with the Company $14.0 million in aggregate principal amount 2.50% Notes held by it in eight equal tranches as follows for each tranche: (a) 2.26 shares per $1,000 principal amount of 2.50% Notes exchanged, plus (b) an additional number of shares of the Company’s common stock per $1,000 principal amount of 2.50% Notes exchanged equal to the sum, for each of the trading days during a separate agreed upon reference period for each tranche commencing on March 21, 2022 for the first tranche, of the quotient of (i) $15.567 divided by (ii) the daily volume-weighted average price for such trading day (collectively, the “Exchange Transaction”). The closing of the March 2022 Exchange Agreement occurred in eight tranches (“2022 Obligation to Exchange”), with the first closing occurring on March 29, 2022 and the last closing on May 18, 2022. On March 21, 2022 the 2022 Obligation to Exchange the $14.0 million of Notes was accounted for as an extinguishment and was replaced by new notes with an embedded feature (the “2022 New Notes”). The 2022 New Notes were elected to be carried using the fair value option. The 2022 New Notes were recorded at fair value on initial measurement and remeasured at fair value (“mark to market”) at each reporting period with changes in fair value reported in other income and expense, net. This fair value election was exclusive to the 2022 New Notes and did not extend to other 2.50% Notes. At June 30, 2022 the embedded feature was no longer outstanding as the 2022 New Notes were exchanged and the 2022 Obligation to Exchange was retired. As of June 30, 2023 and 2022 no 2.50% Notes were carried using the fair value option. During the six months ended June 30, 2022 the holder of the Notes exchanged approximately $14.0 million in aggregate principal amount of Notes held by the holder for approximately 1.1 million shares of the Company's common stock pursuant to the Exchange Agreement. The legal exchange of the 2.50% Notes resulted in a gain of $3.6 million during the six months ended June 30, 2022. The Company’s common stock was determined to have a fair value of $10.2 million, which was recorded to contributed capital during the six months ended June 30, 2022. Closing of Prepaid Forward In connection with the initial offering of the 2.50% Notes, we entered into a prepaid forward stock repurchase transaction (the “Prepaid Forward”) with a financial institution. Pursuant to the Prepaid Forward, we used approximately $45.1 million of the proceeds from the offering of the 2.50% Notes to pay the prepayment amount. The aggregate number of our common stock underlying the Prepaid Forward is approximately 0.2 million shares (based on the sale price of $24.25). On March 24, 2023, approximately 0.2 million shares of common stock were returned to the Company pursuant to our agreement with the counterparty. On March 27, 2018 and forward, these shares purchased under the Prepaid Forward were treated as treasury stock on the condensed consolidated balance sheet (and not outstanding for purposes of the calculation of basic and diluted earnings per share), but remain outstanding for corporate law purposes, including for purposes of any future stockholders’ votes. 5.00% Convertible Senior Notes due 2026 (the “5.00% Notes”) As described above, on June 9, 2023, the Company entered into the June 2023 Exchange Transaction with holders of the 2.50% Notes. The June 2023 Exchange Transaction was accounted for as an extinguishment which resulted in the 5.00% Notes replacing the 2.50% Notes and associated accrued interest expense. The 5.00% Notes were recorded at fair value on initial measurement, while the 2.50% Notes and the associated accrued interest expense were retired. In addition the Company issued an additional $10.0 million aggregate principal amount of 5.00% Notes, for cash proceeds with certain existing note holders. The 5.00% Notes have an aggregate principal amount of $66.9 million and a maturity date of December 15, 2026 (the “Maturity Date”). The 5.00% Notes bear interest at a rate of 5.00% per annum. The Company shall pay interest on the 5.00% Notes by payment-in-kind (“PIK”), by the issuance of additional 5.00% Notes (“PIK Notes”). The amount shall be payable to holders by increasing the principal amount of each outstanding 5.00% Note by an amount equal to the interest payable for the applicable interest period. The Company will calculate PIK interest semi-annually which is June 15 and December 15, on a compound basis based on the stated rate of 5.00%. The PIK Notes will also incur interest at a rate of 5.00% per annum. The 5.00% Note is secured by substantially all of the assets of the Company and its subsidiaries. Holders of the 5.00% Notes who convert their 5.00% Notes in connection with a make-whole fundamental change (as defined in the Indenture) are, under certain circumstances, entitled to an increase in the conversion rate. If a fundamental change occurs at any time prior to the Maturity Date, each holder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s 5.00% Notes, at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest. The 5.00% Notes shall not be redeemable by the Company prior to June 15, 2025 except as set forth below: • On or after June 15, 2025 the Company may, at its option, redeem for cash all or a portion of the 5.00% Notes. If the Company does not redeem 100% of the 5.00% Notes then the redeemed amount is subject to minimums as outlined in the Indenture. Redeeming the 5.00% Notes before June 15, 2025 could trigger a make-whole fundamental change as described above. Each holder of the 5.00% Notes has the right at their option, to convert any portion of the 5.00% Notes at an initial conversion rate of 138.88889 shares of common stock per $1,000 principal amount of the 5.00% Notes. Effective October 18, 2023, the initial conversion rate shall be adjusted to a conversion rate calculated based on a conversion price of $7.20 per share of common stock plus 50% of the difference between the Post-Closing VWAP (as defined in the indenture governing the 5.00% Notes) and $7.20 (if such difference is a positive number), provided that in no event shall the adjusted conversion rate be lower than 120.48193 per $1,000 principal amount of the 5.00% Notes, based on a conversion price of $8.30 per share of common stock. The provision of the agreement is collectively referred to as the (“Conversion Option”). The Company cannot require the holder of the 5.00% Notes to convert at any time. As of June 30, 2023 none of the 5.00% Notes have converted. The number of shares of common stock issuable upon conversion of the 5.00% Notes based on the initial conversion rate is 9.3 million shares as of June 30, 2023, and are available for conversion at the holder’s option. The Conversion Option provides the note holders with the option to convert their notes to shares of the Company’s common stock at either the initial conversion rate or an adjusted conversion rate depending on the timing of conversion, and can be exercised at any time until maturity. The Conversion Option provides the Company with a choice of cash, shares, or combination settlement. Management determined the Conversion Option meets the derivative bifurcation criteria under ASC 815 at inception through October 17, 2023, the date at which the conversion rate will become fixed, during which the derivative instrument will be bifurcated and adjusted to fair value through earnings. From end of day October 17, 2023 and thereafter, the Conversion Option will no longer meet the bifurcation criteria and the derivative instrument will cease being bifurcated and will be accounted for based on applicable accounting guidance. The Derivative is an instrument measured at fair value using Level 3 inputs. The Company’s Conversion Option was recorded at fair value at inception, and marked to market as of June 30, 2023. Changes in the fair value of the derivative financial instrument are recognized in gain (loss) on financial instruments, within the condensed consolidated statement of operations and comprehensive loss. The derivative financial instrument activity for the three and six months ended June 30, 2023 and 2022 is comprised of the following (in thousands): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Beginning balance $ — $ — $ — $ — Derivative liability, June 9, 2023 38,160 — $ 38,160 $ — Change in value - loss 4,626 — 4,626 — Ending balance $ 42,786 $ — $ 42,786 $ — Under ASC 470-50-40, the June 2023 Exchange Transaction qualified as an extinguishment of debt. Under extinguishment accounting, the 2.50% Notes were derecognized and the new instruments, which include the 5.00% Notes and the Conversion Option derivative, were recorded at their respective fair values. The 5.00% Notes represent an instrument measured at fair value on a non-recurring basis using Level 3 inputs. The estimated fair value of the 5.00% Notes on June 9, 2023 is $34.8 million, which included a $6.0 million debt premium. The fair value of the Conversion Option derivative liability of $38.2 million as of the transaction date was recorded as a debt issuance discount at inception on June 9, 2023. The Company incurred issuance costs of $3.0 million. The debt premium, debt discount and debt issuance costs will be amortized using the effective interest method over 3.5 years which is the contractual term of the 5.00% Notes. The effective interest rate on the 5.00% Notes, to par is 27.30%. The carrying value of the 5.00% Notes at June 30, 2023 and December 31, 2022 consisted of the following (in thousands): June 30, December 31, 2023 2022 Outstanding principal at par $ 66,893 $ — Debt premium 5,936 — Unamortized debt discount (37,606) — Unamortized debt issuance (2,934) — Net carrying amount $ 32,289 $ — At June 30, 2023 and December 31, 2022 the 5.00% Notes were classified as follows (in thousands): June 30, December 31, 2023 2022 Current portion of convertible notes $ — $ — Non-current portion of convertible notes 32,289 — Total convertible notes $ 32,289 $ — Interest expense for the 5.00% Notes during the three and six months ended June 30, 2023 and 2022 were as follows (in thousands): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Contractual coupon interest $ 334 $ — $ 334 $ — Amortization of debt discount and issuance costs 510 — 510 — Total interest expense on convertible notes $ 844 $ — $ 844 $ — As of June 30, 2023, the Company had recorded $0.3 million of accrued interest for the 5.00% Notes. Future principal payments on the 5.00% Notes as of June 30, 2023 are as follows (in thousands): 2023 $ — 2024 — 2025 — 2026 79,612 2027 — Total including PIK interest, before unamortized discount and issuance costs $ 79,612 Less: unaccrued paid-in-kind interest (12,719) Less: unamortized discount and deferred issuance costs (34,604) Total notes payable $ 32,289 Fair Value of the 5.00% Notes The 5.00% Notes were measured at fair value on the issuance date of June 9, 2023, and are subsequently measured at fair value for disclosure purposes using Level 3 inputs. As of June 30, 2023, the debt is carried at amortized cost and the fair value is disclosed. The estimated fair value of the 5.00% Notes as of June 30, 2023 was $35.2 million. The fair value of the 5.00% Notes were estimated using a Monte Carlo simulation. The discounted cash flow analysis consisted of the following steps: • The Company modeled the PIK interest of the 5.00% Notes through the Maturity Date; • The Company used a discount rate of 25%, which is consistent with the typical venture capital discount rate; and • The Company discounted the PIK interest and principal payments to determine the value of the 5.00% Notes without the Conversion Option The table below summarizes the significant inputs used to estimate the fair value of the 5.00% Notes as of June 30, 2023: June 30, June 9, 2023 2023 Coupon rate 5.00% 5.00% Term (years) 3.5 3.5 Volatility 55.00 % 55.00 % Risk-free rate 4.41 % 4.15 % Discount yield 25.00 % 25.00 % Discount factor 44.00 % 44.00 % The volatility used to fair value the Conversion Option is an unobservable input, as volatility is an estimate there are a range of values that could be considered appropriate, which could impact the fair value reported. See Note 4, Fair Value of Financial Instruments for additional information. Fair Value of Conversion Option The Company’s Conversion Option is classified as a derivative financial instrument and carried at fair value using Level 3 inputs. To determine the fair value of the Conversion Option, the Company calculated the difference in the value of the 5.00% Notes with and without the Conversion Option. The fair value of the Conversion Option was estimated using a Monte Carlo simulation. For each path, the Company simulated the stock price over time such that: • At the Reset Date, the Company determined the 60-day average stock price to calculate the conversion price • At each date after the call option start date, the Company used a Tsiveriotis and Fernandes model to determine the continuation value and compare it to the Call Price. If the continuation value exceeds the call price, the Company assumed exercise of the call option. When the call option is exercised, the holders will receive the maximum of the conversion value or the call price. • The valuation also considered the reset conversion price as well as the accrued PIK, the Company determined whether the holder elects to convert the 5.00% Notes at the Maturity Date for the simulation paths where the 5.00% Notes has not been called prior to such date. The table below summarizes the significant inputs used to estimate the fair value of the Conversion Option as of June 30, 2023 and June 9, 2023: June 30, June 9, 2023 2023 Stock price $ 8.10 $ 7.40 Initial conversion price $ 7.20 $ 7.20 Conversion cap $ 8.30 $ 8.30 Term (years) 3.5 3.5 Time to call (years) 2.0 2.0 Volatility 55.00 % 55.00 % Risk-free rate 4.41 % 4.15 % Discount yield 25.00 % 25.00 % The volatility used to fair value the Conversion Option is an unobservable input, as volatility is an estimate there are a range of values that could be considered appropriate, which could impact the fair value reported. See Note 4, Fair Value of Financial Instruments for additional information. |