Pursuant to the terms of the April 2, 2021 Note, the Company is
obligated, at the discretion of the noteholder, to reduce the
outstanding balance by $7.5 million per month for five months.
During fiscal year 2022, in partial satisfaction of debt reduction
amounts, the Company and the April 2, 2021 Note holder entered into
exchange agreements, pursuant to which the April 2, 2021 Note was
partitioned into new notes (the “Partitioned Notes”) with an
aggregate principal amount of $18.7 million, which were exchanged
concurrently with the issuance of approximately 25.3 million shares
of common stock. The outstanding balance of the April 2, 2021 Note
was reduced by the Partitioned Notes to a principal amount of $9.8
million. The Company accounted for the restructured partitioned
notes and exchange settlements as induced conversion, and,
accordingly, recorded an aggregate loss on convertible debt induced
conversion of $18.8 million through May 31, 2022.
During the three months ended November 30, 2022, in satisfaction of
a redemption, the Company and the April 2, 2021 Note holder entered
into an exchange agreement, pursuant to which the April 2, 2021
Note was partitioned into a new note (the “November Partitioned
Note”) with a principal amount of $0.5 million, which was exchanged
concurrently with the issuance of approximately 1.8 million shares
of common stock. The outstanding balance of the April 2, 2021 Note
was reduced by the November Partitioned Note to a principal amount
of $9.3 million. The Company accounted for the November Partitioned
Note and exchange settlement as an induced conversion, and,
accordingly, recorded a non-cash loss on convertible debt induced
conversion of $0.6 million for the three months ended November 30,
2022. For the six months ended November 30, 2022 and 2021, the
Company recorded $0.6 million and $6.8 million, respectively, in
loss on convertible debt induced conversion.
Long-term Convertible Note – April
23, 2021 Note
On April 23, 2021, the Company entered into a securities purchase
agreement pursuant to which the Company issued a secured
convertible promissory note with a two-year term to an
institutional accredited investor affiliated with the holder of the
April 2, 2021 Note in the initial principal amount of $28.5 million
(the “April 23, 2021 Note”). The Company received consideration of
$25.0 million, reflecting an original issue discount of $3.4
million and issuance costs of $0.1 million. Interest accrues at an
annual rate of 10% on the outstanding balance of the April 23, 2021
Note, with the rate increasing to the lesser of 22% per annum or
the maximum rate permitted by applicable law upon the occurrence of
an event of default. In addition, upon any event of default, the
investor may accelerate the outstanding balance payable under the
April 23, 2021 Note; upon such acceleration, the outstanding
balance will increase automatically by 15%, 10% or 5%, depending on
the nature of the event of default. The events of default are
listed in Section 4 of the April 23, 2021 Note filed as
Exhibit 4.1 to the Company’s Current Report on Form 8-K
filed on April 29, 2021. The April 23, 2021 Note is secured by all
the assets of the Company, excluding the Company’s intellectual
property.
Pursuant to the terms of the April 23, 2021 Note, the Company must
obtain the investor’s consent before assuming additional debt with
aggregate net proceeds to the Company of less than $75.0 million.
In the event of any such approval, the outstanding principal
balance of the April 23, 2021 Note will increase automatically by
5% upon the issuance of such additional debt. The investor may
convert all or any part of the outstanding balance into shares of
common stock at an initial conversion price of $10.00 per share
upon
five trading days’ notice, subject to certain
adjustments and volume and ownership limitations specified in the
April 23, 2021 Note. In addition to standard anti-dilution
adjustments, the conversion price of the April 23, 2021 Note is
subject to full-ratchet anti-dilution protection, pursuant to which
the conversion price will be automatically reduced to equal the
effective price per share in any new offering by the Company of
equity securities that have registration rights, are registered or
become registered under the Securities Act. The April 23, 2021 Note
provides for liquidated damages upon failure to deliver common
stock within specified timeframes and requires the Company to
maintain a share reservation of 6.0 million shares of common stock.
The investor may redeem any portion of the April 23, 2021 Note, at
any time beginning six months after the issue date, upon
three trading days’ notice, subject to a maximum
monthly redemption amount of $7.0 million. The April 23, 2021 Note
requires the Company to satisfy its redemption obligations in cash
within
three trading days of the Company’s receipt of such
notice. The Company may prepay the outstanding balance of the April
23, 2021 Note, in part or in full, plus a 15% premium, at any time
upon 15 trading days’ notice.
The holders of the April 2 and April 23 Notes waived provisions in
the notes that could have triggered the imposition of a default
interest rate, a downward adjustment of the conversion price, or
specified other provisions relating to default, breach or
imposition of a penalty. The related events included the grant of
registration rights to