DEBT | NOTE 8 – DEBT Loan due December 1, 2018 In December 2013, we entered into a Loan and Security Agreement (the “Oxford Loan Agreement”) with Oxford Finance LLC (“Oxford” or the “Lender”), for a term loan to the Company in the principal amount of $10.0 million (the “Term Loan”). The Term Loan accrues interest at a fixed rate of 8.35% per annum (with a default rate of 13.35% per annum). The Company was required to make monthly interest−only payments until April 1, 2015 (“Amortization Date”) and on the Amortization Date, the Company began to make payments of principal and accrued interest in equal monthly installments of $260 thousand sufficient to amortize the Term Loan through the maturity date of December 1, 2018. All unpaid principal and accrued and unpaid interest with respect to the Term Loan is due and payable in full on December 1, 2018. As security for its obligations under the initial Oxford Loan Agreement (prior to the Third Amendment), the Company granted Lender a security interest in substantially all of its existing and after−acquired assets, exclusive of its intellectual property assets. Pursuant to the Oxford Loan Agreement, the Company is not allowed to pledge its intellectual property assets to others. Upon the execution of the Oxford Loan Agreement, we issued to the Lender warrants to purchase an aggregate of up to 60 thousand shares of our common stock at an exercise price equal to $7.98 per share (after adjustment for our one-for-five reverse stock split) (the “Warrants”). We recorded $400 thousand as debt discount associated with the relative fair value of the Warrants and are amortizing it to interest expense over the term of the loan using the loan’s effective interest rate. The Warrants are immediately exercisable for cash or by net exercise and will expire December 27, 2020. In January 2015, we and Oxford entered into an amendment to the Oxford Loan Agreement. Pursuant to the amendment, (i) the exercise price of the warrants was lowered from $7.98 to $2.52 per share (the average closing price of our common stock on Nasdaq for the 10 trading days preceding the date of the amendment and after giving effect to our one-for-five reverse stock split) and we recorded additional debt discount of $33 thousand representing the fair value of the warrant modification, (ii) we agreed to maintain $2.5 million cash reserves until such time as we have repaid $5.0 million in principal of the Term Loan, and (iii) the Lender consented to the terms of our Collaboration and License Agreement with Egalet relating to our Oxaydo product. In October 2016, we and Oxford entered into a second amendment to the Oxford Loan Agreement (the “Second Amendment”). Pursuant to the Second Amendment, (i) the requirement that we maintain a $2.5 million cash balance reserve until such time as $5.0 million in principal was repaid under the Term Loan has been modified so that the $2.5 million cash balance reserve remains in place until we raise an additional $6.0 million (excluding payments received under the KemPharm Agreement) through the issuance of equity securities and from upfront payments under license, joint venture, collaboration or other partnering transactions, provided that at least $3.0 million of such amount must be raised through the issuance and sale of our equity securities, and (ii) the Lender consented to the terms of our Agreement with KemPharm. In July 2017, the Company completed a private placement of its equity units to an investor, each unit consisting of one share of common stock and a warrant to purchase one-fifth of a share of common stock. The net proceeds to the Company from the private offering was approximately $4.0 million. Giving effect to the $2.5 million upfront payment received from MainPointe pursuant to the MainPointe Agreement and the approximate $4.0 million in net proceeds from the July 2017 private offering, the Company has satisfied the condition in the Second Amendment to the Oxford Loan Agreement to waive the $2.5 million cash reserve requirement. In March 2017, we and Oxford entered into a third amendment to the Oxford Loan Agreement (the “Third Amendment”). Pursuant to the Third Amendment (i) we granted Oxford a lien on our intellectual property, (ii) Oxford provided a waiver of compliance with the Unqualified Audit Opinion Covenant in connection with our receipt of our auditor’s going concern opinion for our 2016 financial statements and (iii) Oxford consented to the terms of the MainPointe Agreement. Under the Oxford Loan Agreement, an audit opinion with an explanatory paragraph noting substantial doubt about the Company’s ability to continue in business is deemed to violate the Unqualified Audit Opinion Covenant. During the second quarter 2018, in connection with $1.5 million loans extended to us by John Schutte, we and Oxford entered into a fourth amendment to the Oxford Loan Agreement (the “Fourth Amendment”). Pursuant to the Fourth Amendment, Oxford provided a waiver of compliance with the Unqualified Audit Opinion Covenant in connection with our receipt of our auditor’s opinion with a going concern explanatory paragraph for our 2017 financial statements and allowed us to deliver financial statements up to 160 days after year end, instead of 120 days after year end. On June 7, 2018 we filed our 2017 financial statements. The Company may voluntarily prepay the Term Loan in full, but not in part, and any prepayment is subject to a prepayment premium equal to 1% of the principal prepaid. In addition, at the maturity, termination or upon voluntary or mandatory prepayment of the Term Loan the Company must pay the Lender an additional one-time interest payment of $795 thousand. We are accruing additional monthly interest expense over the term of the loan for this additional one-time interest payment using the loan’s effective cash interest rate. As of June 30, 2018 and December 31, 2017, we have accumulated and accrued $767 thousand and $700 thousand of additional interest, respectively. The Company was obligated to pay customary lender fees and expenses, including a one-time facility fee of $50 thousand and the Lender’s expenses in connection with the Oxford Loan Agreement. Combined with the Company’s own expenses and a $100 thousand consulting placement fee, the Company incurred $231 thousand in deferred debt issue costs. We are amortizing these costs, including debt modification additional costs, into interest expense over the term of the loan using the loan’s effective interest rate of 10.16%. The Oxford Loan Agreement contains customary representations and warranties and customary affirmative and negative covenants, including, among others, limits or restrictions on the Company’s ability to incur liens, incur indebtedness, pay dividends, redeem stock, and merge or consolidate and dispose of assets. In addition, it contains customary events of default that entitles the Lender to cause any or all of the Company’s indebtedness under the Oxford Loan Agreement to become immediately due and payable. The events of default (some of which are subject to applicable grace or cure periods), include, among other things, non−payment defaults, covenant defaults (including breach of the Unqualified Audit Opinion Covenant), a material adverse change in the Company, bankruptcy and insolvency defaults and material judgment defaults. Loan due January 2, 2020 During the second quarter 2018, we borrowed $1.5 million from John Schutte, a related-party, and issued two promissory notes (the Schutte Notes), in that aggregate principal amount to him. The Schutte Notes bear interest at prime plus 2.0%, and mature on January 2, 2020, at which time all principal and interest is due, and are unsecured until all obligations to Oxford are satisfied at which time we are required to grant a security interest to Mr. Schutte in all of our assets. Because we believe the promissory note’s rate of interest is below current market rates for us, we imputed interest on the below market rate element of the loan using the 10.16% interest rate under the Oxford Loan Agreement which amounted to $74 thousand. We recorded the $74 thousand as a benefit to interest income in the three month period ended June 30, 2018 with a corresponding like amount as debt discount against the principal amount of the loan. The debt discount will be amortized to interest expense over the term on the loans. The events of default under the Schutte Notes are limited to bankruptcy defaults and failure to pay interest and principal when due on January 2, 2020. In addition, Mr. Schutte and Oxford entered into a subordination agreement, approved by us and our subsidiary, pursuant to which Mr. Schutte subordinated the Schutte Notes to our obligations to Oxford under the Oxford Loan Agreement. The Schutte Notes may be prepaid at any time in whole or in part, however while Oxford’s loan is outstanding such prepayment will require Oxford’s consent. Our debt at June 30, 2018 is summarized below (in thousands): Current Long-term Total Loan Due December 1, 2018 Balance at Jan. 1, 2018 $ 2,740 $ - $ 2,740 Principal payments (1,220 ) - (1,220 ) Balance at Jun. 30, 2018 $ 1,520 $ - $ 1,520 Loan Due January 2, 2020 Balance at Jan. 1, 2018 $ - $ - $ - Borrowings - 1,500 1,500 Balance at Jun. 30, 2018 $ - $ 1,500 $ 1,500 Debt Discount Current Long-term Total Balance at Jan. 1, 2018 $ (32 ) $ - $ (32 ) Additions - (74 ) (74 ) Amortization expense 21 3 24 Balance at Jun. 30, 2018 $ (11 ) $ (71 ) $ (82 ) Deferred Debt Issuance Costs Current Long-term Total Balance at Jan. 1, 2018 $ (14 ) $ - $ (14 ) Amortization expense 10 - 10 Balance at Jun. 30, 2018 $ (4 ) $ - $ (4 ) Debt, net at Jun. 30, 2018 $ 1,505 $ 1,429 $ 2,934 Our debt interest expense for the three and six months ended June 30, 2018 and 2017 consisted of the following (in thousands): Three months Ended June 30, Six months Ended June 30, Interest expense: 2018 2017 2018 2017 Term loan – due December 1, 2018 $ 63 $ 133 $ 145 $ 281 Term loans – due January 2, 2020 8 - 8 - Debt discount 13 17 24 37 Debt issue costs 4 9 10 19 Total interest expense $ 88 $ 159 $ 187 $ 337 Less: imputed interest income on related party loan (74 ) - (74 ) - Less: interest income - (1 ) - (2 ) Total interest expense, net $ 14 $ 158 $ 113 $ 335 |