CONVERTIBLE NOTES | CONVERTIBLE NOTES The Company’s convertible notes consisted of the 2.50% Notes and the 5.00% Notes as of December 31, 2023, and the 2.50% Notes as of December 31, 2022. As of December 31, 2023 and 2022, the convertible note obligations were classified as follows in the consolidated balance sheets (in thousands): 2023 2022 2.50% Notes $ 726 $ 56,413 5.00% Notes $ 36,102 $ — Total convertible notes $ 36,828 $ 56,413 Current portion of convertible notes $ 726 $ 56,413 Convertible notes, non-current $ 36,102 $ — Interest expense related to the Company’s convertible note obligations consisted of the following for the years ended December 31 (in thousands): 2023 2022 2021 Contractual coupon interest $ 2,425 $ 1,794 $ 3,934 Amortization of premium, discount and issuance costs, net 3,278 474 11,542 Total interest expense on convertible notes $ 5,703 $ 2,268 $ 15,476 Gain (loss) on extinguishment of exchanged convertible notes were as follows for the years ended December 31 (in thousands): 2023 2022 2021 (Loss) gain on extinguishment $ (6,499) $ 3,565 $ 4,916 2.50% Notes The carrying value of the 2.50% Notes was included in current portion of convertible notes and consisted of the following at December 31 (in thousands): 2023 2022 Outstanding principal $ 726 $ 56,595 Unamortized debt issuance — (182) Net carrying amount $ 726 $ 56,413 In March 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 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 until the maturity date of the 2.50% Notes. The 2.50% Notes matured on March 15, 2023 and became due and payable. In September 2021 and March 2022, the Company entered into separate exchange agreements with certain holders of 2.50% Notes, pursuant to which $65.0 million aggregate principal amount of 2.50% Notes were exchanged for an aggregate of approximately 1.7 million shares of the Company’s common stock. For the year ended December 31, 2021, the Company incurred $0.9 million of reacquisition costs associated with these transactions, which were recorded as an offset to the gain on extinguishment of debt, resulting in a net gain $4.9 million. For the year ended December 31, 2022, the Company incurred $0.2 million of reacquisition costs, which were recorded as an offset to the gain on extinguishment of debt, resulting in a net gain of $3.6 million. The net gain on extinguishment of debt for the years ended December 31, 2022 and 2021 are reflected in other income (expense), net in the consolidated statements of operations. In August 2022, the Company entered into an exchange agreement (the “August 2022 Exchange Agreement”) with the Schuler Trust. Under the terms of the August 2022 Exchange Agreement, the Schuler Trust agreed to exchange with the Company $49.9 million in aggregate principal amount of 2.50% Notes held by it for (a) the Secured Note with an aggregate principal amount of $34.9 million and (b) a warrant to acquire the Company’s common stock (the “Warrant”) at an exercise price of $21.20 per share (the “Exercise Price”). The estimated fair value of the Secured note and the Warrant at the time of the exchange was $16.0 million and $3.8 million, respectively, resulting in a net gain of $29.8 million recorded to contributed capital for the year ended December 31, 2022. See Note 11, Related Party Transactions for additional information. As of December 31, 2022, $56.4 million aggregate principal amount of the 2.50% Notes were outstanding and convertible pursuant to their original terms, none of which were converted prior to the March 15, 2023 maturity date. In March 2023, the Company entered into the Forbearance Agreement 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 executed and delivered 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 2.50% Notes Indenture in connection with certain events of default under the 2.50% Notes 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 2.50% Notes 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 for the 2.50% Notes. 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 year ended December 31, 2023, the Ad Hoc Noteholder Group received $0.2 million in Forbearance Premiums, which were capitalized and amortized as interest expense during the period commencing on March 13, 2023 through March 31, 2023. Restructuring Support Agreement and June 2023 Exchange Transactions In April 2023, the Company entered into the Restructuring Support Agreement with certain holders of the 2.50% Notes, the holder of the Secured Note and the holders of the Company’s Series A Preferred Stock to negotiate in good faith to effect the restructuring of the Company’s capital structure. In June 2023, the Company completed the Restructuring Transactions, contemplated by the Restructuring Support Agreement whereby the Company: • 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 an additional 5.00% Notes in respect of interest accrued on the 2.50% Notes from September 15, 2022, for $1.0 million; • issued and sold an additional $10.0 million aggregate principal amount of 5.00% Notes; • amended and repurchased the Secured Note, plus accrued interest, by issuing approximately 3.4 million shares of the Company’s common stock; • 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; • amended the March 2022 Securities Purchase Agreement and issued and sold approximately 0.5 million shares of the Company’s common stock for proceeds of $4.0 million; and • entered into the Schuler Purchase Obligation, a new securities purchase agreement with the Schuler Trust pursuant to which the Schuler Trust was required, prior to December 15, 2023 (which was subsequently amended and extended to February 15, 2024), to either purchase an aggregate $10.0 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 $10.0 million, at the Company’s option. Further details regarding the Schuler Purchase Obligation and amendment are included in Note 11, Related Party Transactions. The convertible note exchange transaction which resulted in a portion of the 2.50% Notes being exchanged for 5.00% Notes, as described above, and associated accrued interest was accounted for as an extinguishment of debt under ASC 470-50-40. Under extinguishment accounting, the 2.50% Notes were derecognized and the new instruments, which included the 5.00% Notes and a bifurcated Conversion Option were recorded at their respective fair values. The extinguishment of the 2.50% Notes resulted in a loss of $6.6 million for the year ended December 31, 2023. See further discussion of the 5.00% Notes below. As of December 31, 2023, approximately $0.7 million aggregate principal amount of the 2.50% Notes remained outstanding and in default, accruing interest at 2.50% per annum. None of the remaining 2.50% Notes outstanding as of December 31, 2023 are convertible pursuant to their original terms. As of December 31, 2023, the amount of accrued interest on these notes is immaterial. 5.00% Notes The carrying value of the 5.00% Notes consisted of the following at December 31 (in thousands): 2023 2022 Outstanding principal at par $ 67,634 $ — Unamortized debt premium 5,408 — Unamortized debt discount (34,267) — Unamortized debt issuance costs (2,673) — Net carrying amount $ 36,102 $ — As a result of the Restructuring Transactions, the Company recorded at fair value approximately $56.9 million aggregate principal amount of newly issued 5.00% Notes in its consolidated balance sheets in June 2023. 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 as part of the Restructuring Transactions. Following the Restructuring Transactions and the issuance of additional 5.00% Notes, the 5.00% Notes had a total aggregate principal amount of $66.9 million. On the December 15, 2026 maturity date, outstanding principal will be due for all remaining outstanding 5.00% Notes. The 5.00% Notes bear interest at a rate of 5.00% per annum. The Company pays interest on the 5.00% Notes by payment-in-kind (“PIK”), through the issuance of additional 5.00% Notes (“PIK Notes”). The amount is paid 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 calculates PIK interest semi-annually on June 15 and December 15, on a compound basis based on the stated rate of 5.00%. The 5.00% Notes are secured by substantially all of the assets of the Company and its subsidiaries. Redeeming the 5.00% Notes before June 15, 2025 could trigger a “Make-Whole Fundamental Change” as defined in the indenture governing the 5.00% Notes (the “5.00% Notes Indenture”). On or after June 15, 2025, the Company may, at its option, redeem for cash all or a portion of the 5.00% Notes. Upon issuance of the 5.00% Notes, each holder has a Conversion Option, which represented the right at their option, to convert any portion at an initial conversion rate of 138.88889 shares of common stock per $1,000 of principal amount. Effective October 18, 2023, the initial conversion rate was to 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 5.00% Notes Indenture) and $7.20 (if such difference is a positive number), provided that in no event will 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 Company evaluated the conversion rate per the terms outlined above and determined the initial conversion rate of 138.88889 shares of common stock per $1,000 principal amount will continue to be the conversion rate through the remaining term of the 5.00% Notes. The Company cannot require the holders of the 5.00% Notes to convert at any time but when a holder exercises their Conversion Option, the Company can settle in cash, shares of common stock or a combination of cash and shares of common stock, at the Company’s election. As of December 31, 2023, the number of shares of common stock issuable upon conversion of the 5.00% Notes was 9.4 million shares, based on the conversion rate which was fixed on October 18, 2023. Management determined the Conversion Option met the derivative bifurcation criteria under ASC 815 at inception through October 17, 2023, the date at which the conversion rate became fixed. During that period the derivative instrument was bifurcated and adjusted to fair value through earnings, using Level 3 inputs, at each reporting date with a final mark-to-market adjustment once the Conversion Option became fixed at the end of the day on October 17, 2023 and no longer met the bifurcation criteria. The fair value of the Conversion Option and a derivative liability of $38.2 million as of the transaction date was recorded as a debt issuance discount at inception. The Company also incurred issuance costs of $3.0 million. The debt premium, debt discount and debt issuance costs are being amortized using the effective interest method over the 3.5 year contractual term of the 5.00% Notes. The effective interest rate on the 5.00% Notes is 27.30%. Holders of the 5.00% Notes who convert in connection with the Make-Whole Fundamental Change 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 will 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. During the period from inception through October 17, 2023, the bifurcated Conversion Option was adjusted to fair value through earnings within Gain on fair value adjustment on the statement of operations and the statement of cash flows, using Level 3 inputs, at each reporting date with a final mark-to-market adjustment once the Conversion Option became fixed at the end of the day on October 17, 2023 and no longer met the bifurcation criteria. The derivative financial instrument activity for the year ended December 31, 2023 is comprised of the following (in thousands): 2023 Beginning balance $ — Initial measurement 38,160 Reduction as a result of conversion of 5.00% Notes (380) Change in value - gain (10,872) Reclassification to contributed capital (26,908) Ending balance $ — The derivative financial instrument was derecognized as of October 17, 2023, and the fair value of the instrument as of that date was moved to contributed capital in the consolidated balance sheet. In August 2023 and October 2023, certain holders of 5.00% Notes converted portions of their aggregate principal amount for shares of common stock (the “August 2023 Conversions”, the “October 2023 Conversions”, and collectively, the “Conversions”). Per the terms described above as part of the Conversion Option, the note holders opted to convert portions of their 5.00% Notes, at a conversion rate of 138.88889 shares of common stock per $1,000 principal amount. Through the August 2023 Conversions, the holders of the 5.00% Notes converted approximately $0.7 million of aggregate principal for approximately 94,000 shares of the Company’s common stock. Through the October 2023 Conversions, the holders of the 5.00% Notes converted an additional $0.3 million of aggregate principal for approximately 39,000 shares of the Company’s common stock. As described above, the Conversion Option was bifurcated which resulted in the Conversions qualifying as extinguishments of debt. The August 2023 Conversions included the bifurcated Conversion Option classified as a derivative liability, and both the converted 5.00% Notes and the associated derivative liability, where applicable, were derecognized at their carrying amounts and the common stock was measured at its then-current fair value, with the difference recorded as a gain on the extinguishment of the applicable liability. The value of the shares of common stock issued in connection with the October 2023 Conversions was recorded to contributed capital. The net carrying value of the 5.00% Notes derecognized as part of the August 2023 and October 2023 Conversions was $0.3 million and $0.1 million, respectively. The carrying amount of the derivative liability, which was carried at fair value, derecognized as part of the August 2023 Conversions was $0.4 million. The August 2023 Conversions resulted in a gain on extinguishment of debt of $0.1 million, for the year ended December 31, 2023. 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, the initial measurement, date was $38.2 million, which included a $6.0 million debt premium. As of December 31, 2023, the 5.00% Notes are carried at amortized cost with an estimated fair value of $50.8 million. The table below summarizes the significant inputs used to estimate the fair value of the 5.00% Notes as of December 31, 2023 and the June 9, 2023 issuance date: December 31, June 09, 2023 2023 Coupon rate 5.00% 5.00% Term (years) 3.0 3.5 Volatility 55.00% 55.00% Risk-free rate 4.02 % 4.15 % Discount yield 25.00 % 25.00 % Discount factor 50.00% 44.00% The volatility used to estimate the fair value of the 5.00% Notes is an unobservable input. As volatility is an estimate, there is a range of values that could be considered appropriate. Changes to this input could impact the fair value reported. On December 15, 2023, the Company issued $1.7 million of PIK Notes to pay interest accrued on the 5.00% Notes outstanding as of that date. As of December 31, 2023, the Company has recorded $0.1 million of accrued interest related to the 5.00% Notes. Fair Value of Conversion Option The Company’s Conversion Option was classified as a derivative financial instrument and carried at fair value using Level 3 inputs from the date of inception until the conversion price became fixed on October 17, 2023. 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 estimated fair value of the Conversion Option as of October 17, 2023 was $26.9 million. 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: • 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 a 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 October 17, 2023 and June 9, 2023: October 17 June 09, 2023 2023 Stock price $ 5.94 $ 7.40 Initial conversion price $ 7.20 $ 7.20 Conversion cap $ 8.30 $ 8.30 Term (years) 3.2 3.5 Time to call (years) 1.7 2.0 Volatility 55.00 % 55.00 % Risk-free rate 5.00 % 4.15 % Discount yield 25.00 % 25.00 % The volatility used to estimate the fair value of the Conversion Option is an unobservable input and, because volatility is an estimate, there is a range of values that could be considered appropriate. Changes to this input could impact the fair value reported. See Note 4, Fair Value of Financial Instruments for additional information. |