Convertible Notes and Warrants

9 Months Ended

Sep. 30, 2023

Debt Disclosure [Abstract]

Convertible Notes and Warrants

Convertible Notes and Warrants

On October 11, 2023, the Company entered into a securities purchase agreement (the “Purchase Agreement”) with High Trail Special Situations LLC (the “Purchaser”) pursuant to which the Company agreed to issue and sell, for an aggregate $80.0 million in gross proceeds:

(i) in a registered offering by the Company directly to the Purchaser (the “Offering”)

(a) $45.0 million aggregate principal amount of senior secured convertible notes due 2025 (the “Registered Notes”) initially convertible by the Purchaser at a price of $2.86 into 15.7 million shares of the Company’s common stock and

(b) warrants to purchase up to 21.7 million shares of the Company’s common stock at a price of $3.19 per share (the “Registered Warrants”), and

(ii) in a concurrent private placement (the “Private Placement”), $35.0 million aggregate principal amount of senior secured convertible notes due 2025 initially convertible at a price of $2.86 into 12.2 million shares of the Company’s common stock (the “Private Placement Notes” and together with the Registered Notes, the “Notes”).

The Company also granted the Purchaser an option to purchase up to an additional $25.0 million aggregate principal amount of Private Placement Notes initially convertible at a price of $2.86 into 8.7 million shares of the Company’s common stock (the “Subsequently Purchased Notes”) and warrants (the “Private Placement Warrants” and together with the Registered Warrants, the “Warrants”) to purchase up to 6.8 million shares of the Company’s common stock in a subsequent private placement on the same terms as the Notes and the Registered Warrants (any such subsequent private placement, a “Subsequent Private Placement”). The $35.0 million proceeds of the Private Placement Notes was deposited into a restricted account subject to an account control agreement that only permits funds to be released once per calendar month upon the satisfaction of certain funding conditions specified in the Notes. The Notes are secured by a first-priority lien, subject only to certain permitted liens, on substantially all of the Company’s and subsidiaries’ (other than certain foreign subsidiaries) tangible and intangible assets, whether now owned or hereafter acquired (other than certain excluded property). The Offering and Private Placement closed on October 13, 2023. The Company’s net proceeds from the sale of the Notes and the Registered Warrants were approximately $75.6 million, after deducting the estimated Offering and Private Placement expenses and placement agent fees.

Placement Agent Agreement

The Company retained Cowen and Company, LLC and Stifel, Nicolaus & Company, Incorporated to act as co-lead placement agents and BTIG, LLC as placement agent (together, the “Placement Agents”) for the sale of the Notes and the Warrants, and entered into a placement agent agreement, dated October 11, 2023. The Company agreed to pay the Placement Agents a cash fee equal to $2.7 million at the closing of the Offering and a cash fee equal to 6.0% of the gross proceeds from the sale of any Subsequent Private Placement. The Placement Agent Agreement contains customary representations, warranties and agreements by the Company and indemnification obligations.

Senior Secured Convertible Notes

The Notes were sold at 100% of their principal amount and will be repaid at 115% of the principal amount (the “Repayment Price”). The Notes do not bear regular interest and mature on September 1, 2025 (the “Maturity Date”), unless earlier repurchased, redeemed or converted. The holders will have the option to partially redeem a portion of the Notes on the first day of each month beginning on November 1, 2023, at the Repayment Price. The Company has the right to redeem all of the then outstanding principal amount of the Notes under certain circumstances, and the holders of the Notes may require the Company to redeem the Notes upon a fundamental change (as defined in the Notes) in each case for a redemption price set forth in the Notes. The Notes subject the Company to various affirmative and negative covenants, events of default and other restrictions.

On the earlier to occur of (i) the date that no principal amount remains outstanding or (ii) the Maturity Date, the Company will be required to pay a retirement fee to the holders of the Notes equal to the product of (x) with respect to the Registered Notes, (a) 2.8 million multiplied by (b) a fraction, whose numerator is an amount equal to $45.0 million less the aggregate principal amount of such Registered Notes converted into shares of the Company’s common stock, and whose denominator is $45.0 million; (y) with respect to the Private Placement Notes, (a) $2.2 million multiplied by (b) a fraction, whose numerator is an amount equal to $35.0 million less the aggregate principal amount of such Private Placement Notes converted into shares of the Company’s common stock, and whose denominator is $35.0 million; and (z) with respect to any Subsequently Purchased Notes, an amount equal to 6.25% of the initial principal amount of such Subsequently Purchased Notes multiplied by (b) a fraction, whose numerator is an amount equal to the initial principal amount of such Subsequently Purchased Notes less the aggregate principal amount of such Subsequently Purchased Notes converted into shares of the Company’s common stock, and whose denominator is an amount equal to the initial principal amount of such Subsequently Purchased Notes.

Warrants

Each Warrant is immediately exercisable upon issuance for one share of the Company’s common stock with an exercise price of $3.19 per share. The Warrants expire on the fifth anniversary of the date of issuance and provide for earlier redemption at the request of the holder in the event of a Change of Control, as defined. The exercise price and number of Warrants is subject to adjustment in the event of subdivision or combination of the Company’s common stock, and the exercise price is subject to reduction at any time if deemed appropriate by the Company’s Board of Directors. The holders of the Warrants have certain participatory rights upon any distributions of assets, including cash, stock or other property to the Company’s stockholders, per their terms. The holders of the Warrants have certain purchase rights if at any time the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the holders of common stock, per their terms. The Warrants include provision for cashless exercise, at the holder’s election, if at the time of exercise there is no effective registration statement registering, or a prospectus is not available for the issuance of, the common stock to the holder. The Holder’s ability to exercise the Warrants is limited if after such exercise the holder and its affiliates and attribution parties beneficially own an aggregate of 4.99% of the Company’s common stock, which percentage may be changed at the holders’ election to a higher or lower percentage not in excess of 9.99% upon 61 days’ notice subject to the terms of the Warrants.