See accompanying notes to unaudited condensed consolidated financial statements.
See accompanying notes to unaudited condensed consolidated financial statements.
See accompanying notes to unaudited condensed consolidated financial statements.
See accompanying notes to unaudited condensed consolidated financial statements.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
1. The Company and Basis of Presentation
The Company
Alphatec Holdings, Inc. (the “Company”), through its wholly owned subsidiary, Alphatec Spine, Inc. and its subsidiaries (“Alphatec Spine”), is a medical technology company focused on the design, development and promotion of products for the surgical treatment of spine disorders. The Company has a comprehensive product portfolio and pipeline that addresses the cervical, thoracolumbar and intervertebral regions of the spine and covers a variety of spinal disorders and surgical procedures. The Company’s principal product offerings are focused on the U.S. market for fusion-based spinal disorder solutions.
On September 1, 2016, the Company completed the sale of its international distribution operations and agreements to Globus Medical Ireland, Ltd., a subsidiary of Globus Medical, Inc., and its affiliated entities (collectively “Globus”), including the Company’s wholly-owned subsidiaries in Japan, Brazil, Australia and Singapore and substantially all of the assets of the Company’s other sales operations in the United Kingdom and Italy (collectively, the “International Business”), pursuant to a purchase and sale agreement, dated as of July 25, 2016 (as amended, the “Purchase and Sale Agreement”) (the “Globus Transaction”). As a result of the Globus Transaction, the Company's International Business has been excluded from continuing operations for all periods presented in this Quarterly Report on Form 10-Q and is reported as discontinued operations. See Note 4 for additional information on the divestiture of the International Business. The Company operates in one reportable business segment. The sale of the international operations represented a strategic shift and has a significant impact on the Company's operations and financial results.
Basis of Presentation
The accompanying condensed consolidated balance sheet as of December 31, 2016, which has been derived from audited financial statements, and the unaudited interim condensed consolidated financial statements have been prepared by the Company in accordance with U.S. generally accepted accounting principles (“GAAP”) and the rules and regulations of the Securities and Exchange Commission (“SEC”) related to a quarterly report on Form 10-Q. Certain information and note disclosures normally included in annual audited financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to those rules and regulations, although the Company believes that the disclosures made in this Quarterly Report on Form 10-Q are adequate to make the information not misleading. The interim unaudited condensed consolidated financial statements reflect all adjustments, including normal recurring adjustments which, in the opinion of management, are necessary for a fair statement of the financial position and results of operations for the periods presented. These unaudited condensed consolidated financial statements should be read in conjunction with the Company’s audited consolidated financial statements for the year ended December 31, 2016, which are included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016 that was filed with the SEC on March 31, 2017.
Operating results for the three and nine months ended September 30, 2017 are not necessarily indicative of the results that may be expected for the year ending December 31, 2017, or any other future periods.
On August 24, 2016, the Company filed a certificate of amendment to its certificate of incorporation with the Secretary of State of the state of Delaware to effectuate a 1-for-12 reverse stock split of the Company’s issued and outstanding common stock. The accompanying condensed consolidated financial statements and notes thereto give retrospective effect to the reverse stock split for all periods presented. All issued and outstanding common stock, options exercisable for common stock, warrants exercisable for common stock, restricted stock units, and per share amounts contained in the Company’s condensed consolidated financial statements have been retroactively adjusted to reflect this reverse stock split for all periods presented.
As a result of the sale of the International Business, the Company has retrospectively revised the condensed consolidated statements of operations for the three and nine months ended September 30, 2016, to reflect the financial results from the International Business, and the related assets and liabilities, as discontinued operations.
The Company’s annual operating plan projects that its existing working capital at September 30, 2017 of $32.0 million (including cash of $15.4 million) plus committed financing proceeds and borrowings under the Company’s existing MidCap revolving credit facility allows the Company to fund its operations through one year subsequent to the date the financial statements are issued.
7
The Company has incurred significant net losses since inception and has relied on its ability to fund its operations through revenues from the sale of its products, equity fi
nancings and debt financings. As the Company has historically incurred losses, successful transition to profitability is dependent upon achieving a level of revenues adequate to support the Company’s cost structure. This may not occur and, unless and until
it does, the Company will continue to need to raise additional capital. Operating losses and negative cash flows may continue for at least the next year as the Company continues to incur costs related to the execution of its operating plan and introducti
on of new products.
As more fully described in Note 5, the Company is a party to debt agreements with MidCap Funding IV, LLC and Globus International (the “Debt Agreements”). The Debt Agreements include traditional lending and reporting covenants, including a financial covenant that requires the Company to maintain a minimum fixed charge coverage ratio, beginning in April 2018. Should at any time the Company fail to maintain compliance with this covenant, the Company will need to seek waivers or amendments to the Debt Agreements. If the Company is unable to secure such waivers or amendments, it may be required to classify its obligations under the Debt Agreements in current liabilities on its consolidated balance sheet. The Company may also be required to repay all or a portion of outstanding indebtedness under the Debt Agreements, which would require the Company to obtain further financing. There is no assurance that the Company will be able to obtain further financing, or do so on reasonable terms.
The accompanying condensed consolidated financial statements have been prepared assuming that the Company will continue as a going concern and do not include any adjustments that might result from the outcome of this uncertainty. A going concern basis of accounting contemplates the recovery of the Company’s assets and the satisfaction of its liabilities in the normal course of business.
Reclassification
Certain amounts in the condensed consolidated financial statements included in our Form 10-Q for the nine months ended September 30, 2016 have been reclassified to conform to current period's presentation. Reclassifications between general and administrative and amortization of intangible assets were made to improve the comparability of the statements. None of the adjustments had any effect on the prior period net loss.
2. Summary of Significant Accounting Policies
The Company’s significant accounting policies are described in Note 2 to its audited consolidated financial statements for the year ended December 31, 2016, which are included in the Company’s Annual Report on Form 10-K that was filed with the SEC on March 31, 2017. Except as discussed below, these accounting policies have not significantly changed during the nine months ended September 30, 2017.
Warrant Accounting
As more fully described
in Note 10, the Company issued warrants to purchase shares of the Company’s common stock in connection with a private placement transaction that closed on March 29, 2017. These warrants contain a feature that could require the transfer of cash
in the event of a Fundamental Transaction, as defined in such warrants (other than a Fundamental Transaction not approved by the Company’s Board of Directors). As of September 30, 2017, the warrant holders did not control the Company’s Board of Directors, and therefore,
since potential future cash settlement was deemed to be within
the Company’s control, the warrants
were classified in stockholder’s equity in accordance with the authoritative accounting guidance.
Recent Accounting Pronouncements
In May 2014, the Financial Accounting Standards Board (“FASB”) issued new accounting guidance related to revenue recognition. This new standard replaces all current U.S. GAAP guidance on this topic and eliminates all industry-specific guidance. The new revenue recognition standard provides a unified model to determine when and how revenue is recognized. The core principle is that a company should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration for which the entity expects to be entitled in exchange for those goods or services. This guidance, including all subsequent clarifications, is effective for the Company for annual and interim reporting periods in fiscal years beginning after December 15, 2017 and can be applied either retrospectively to each period presented or as a cumulative-effect adjustment as of the date of adoption. The Company performed a preliminary assessment of the impact of the new standard on the consolidated financial statements, and considered all items outlined in the standard. In assessing the impact, the Company has outlined all revenue generating activities, mapped those activities to performance obligations and traced those performance obligations to the standard. The Company is now assessing what impact the change
8
in standard will have on those performance obligations. The Company will continue to evaluate the future impact and method of adoption of the new standard
and related amendments on the consolidated financial statements and related disclosures throughout 2017. The Company will adopt the new standard beginning January 1, 2018.
In July 2015, the FASB issued new accounting guidance, which changes the measurement principle for inventory from the lower of cost or market to lower of cost and net realizable value for entities that do not measure inventory using the last-in, first-out or retail inventory method. The guidance also eliminates the requirement for these entities to consider replacement cost or net realizable value less an approximately normal profit margin when measuring inventory. The guidance was effective for the Company for annual and interim reporting periods in fiscal years beginning after December 15, 2016. The adoption, effective January 1, 2017, did not have a material impact on the Company’s condensed consolidated financial statements.
In February 2016, the FASB issued new accounting guidance, which changes several aspects of the accounting for leases, including the requirement that all leases with durations greater than twelve months be recognized on the balance sheet. The guidance is effective for annual and interim reporting periods in fiscal years beginning after December 15, 2018. The Company is evaluating the impact of adopting this new accounting standard on its financial statements.
In March 2016, the FASB issued new accounting guidance, which changes several aspects of the accounting for share-based payment award transactions, including accounting and cash flow classification for excess tax benefits and deficiencies, forfeitures, and tax withholding requirements and cash flow classification. The guidance is effective for annual and interim reporting periods in fiscal years beginning after December 15, 2016. The Company adopted the standard for reporting periods beginning January 1, 2017. The Company elected to keep its policy consistent for the application of a forfeiture rate and, therefore, the adoption of the guidance did not have a material impact on its unaudited condensed financial statements.
In August 2016, the FASB issued new accounting guidance, which eliminates the diversity in practice related to the classification of certain cash receipts and payments in the statement of cash flows, by adding or clarifying guidance on eight specific cash flow issues. The guidance is effective for annual and interim reporting periods in fiscal years beginning after December 15, 2017, with early adoption permitted. The amendments in this update should be applied retrospectively to all periods presented, unless deemed impracticable, in which case, prospective application is permitted. The Company is evaluating the new guidance and has not determined the impact this standards update may have on its financial statements.
In January 2017, the FASB issued new accounting guidance, which was created to assist entities with evaluating whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses. This guidance provides a screen to determine whether an integrated set of assets and activities is a business. The screen requires that when substantially all of the fair value of the gross assets acquired (or disposed of) is concentrated in a single identifiable asset or a group of similar identifiable assets, the set is not a business. The guidance is effective for annual and interim reporting periods in fiscal years beginning after December 15, 2017. The Company does not anticipate this standard to have an impact on the Company’s consolidated financial statements unless a transaction occurs that would need to be evaluated under this guidance at which time the Company will assess the impact of this standard.
In May 2017, the FASB recently issued
ASU 2017-09,
Compensation-Stock Compensation
, to provide clarity and reduce both 1) diversity in practice and 2) cost and complexity when applying the guidance in Topic 718 to a change in the terms or conditions of a share-based payment award. ASU 2017-09 provides guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting under Topic 718. The amendments in ASU 2017-09 are effective for fiscal and interim reporting periods in fiscal years beginning after December 15, 2017. Early adoption is permitted, including adoption in any interim period. The amendments in ASU 2017-09 should be applied prospectively to an award modified on or after the adoption date.
The Company does not anticipate that the adoption of ASU 2017-09 will have a material impact on its consolidated financial statements unless a transaction occurs that would need to be evaluated under this guidance at which time the Company will assess the impact of this standard.
In July 2017, the FASB issued ASU 2017-11,
Earnings Per Share (Topic 260); Distinguishing Liabilities from Equity (Topic 480); Derivatives and Hedging (Topic 815): (Part I) Accounting for Certain Financial Instruments with Down Round Features, (Part II) Replacement of the Indefinite Deferral for Mandatorily Redeemable Financial Instruments of Certain Nonpublic Entities and Certain Mandatorily Redeemable Non-controlling Interests with a Scope Exception.
The ASU allows companies to exclude a down round feature when determining whether a financial instrument (or embedded conversion feature) is considered indexed to the entity’s own stock. As a result, financial instruments (or embedded conversion features) with down round features may no longer be required to be accounted classified as liabilities. A company will recognize the value of a down round feature only when it is triggered and the strike price has been adjusted downward. For equity-classified freestanding financial instruments, such as warrants, an entity will treat the value of the effect of the down round,
9
when triggered, as a dividend and a reduction of income available to common shareholders in computing basic earnings per share. For convertible instruments with embedded conversion features containing down round provisions, en
tities will recognize the value of the down round as a beneficial conversion discount to be amortized to earnings. The guidance in ASU 2017-11 is effective for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. E
arly adoption is permitted, and the guidance is to be applied using a full or modified retrospective approach.
The Company does not anticipate that the adoption of ASU 2017-11 will have a material impact on its consolidated financial statements unless a tr
ansaction occurs that would need to be evaluated under this guidance at which time the Company will assess the impact of this standard.
3. Select Condensed Consolidated Balance Sheet Details
Accounts Receivable, net
Accounts receivable, net consist of the following (in thousands):
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
Accounts receivable
|
|
$
|
13,819
|
|
|
$
|
19,870
|
|
Allowance for doubtful accounts
|
|
|
(516
|
)
|
|
|
(1,358
|
)
|
Accounts receivable, net
|
|
$
|
13,303
|
|
|
$
|
18,512
|
|
Inventories, net
Inventories, net consist of the following (in thousands):
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
Raw materials
|
|
$
|
5,454
|
|
|
$
|
7,301
|
|
Work-in-process
|
|
|
926
|
|
|
|
823
|
|
Finished goods
|
|
|
38,910
|
|
|
|
38,469
|
|
|
|
|
45,290
|
|
|
|
46,593
|
|
Less reserve for excess and obsolete finished goods
|
|
|
(15,543
|
)
|
|
|
(16,500
|
)
|
Inventories, net
|
|
$
|
29,747
|
|
|
$
|
30,093
|
|
Property and Equipment, net
Property and equipment, net consist of the following (in thousands except as indicated):
|
|
Useful lives
(in years)
|
|
|
September 30,
2017
|
|
|
December
31, 2016
|
|
Surgical instruments
|
|
|
4
|
|
|
$
|
53,116
|
|
|
$
|
53,095
|
|
Machinery and equipment
|
|
|
7
|
|
|
|
5,492
|
|
|
|
5,435
|
|
Computer equipment
|
|
|
3
|
|
|
|
3,512
|
|
|
|
3,511
|
|
Office furniture and equipment
|
|
|
5
|
|
|
|
2,707
|
|
|
|
2,695
|
|
Leasehold improvements
|
|
various
|
|
|
|
1,664
|
|
|
|
3,467
|
|
Construction in progress
|
|
n/a
|
|
|
|
-
|
|
|
|
445
|
|
|
|
|
|
|
|
|
66,491
|
|
|
|
68,648
|
|
Less accumulated depreciation and amortization
|
|
|
|
|
|
|
(53,216
|
)
|
|
|
(53,572
|
)
|
Property and equipment, net
|
|
|
|
|
|
$
|
13,275
|
|
|
$
|
15,076
|
|
Total depreciation expense was $1.6 million and $1.6 million for the three months ended September 30, 2017 and 2016 and $4.8 million and $5.6 million for the nine months ended September 30, 2017 and 2016, respectively. At September 30, 2017 and December 31, 2016, assets recorded under capital leases of $2.1 million were included in the machinery and equipment balance. Amortization of assets under capital leases is included in depreciation expense.
10
Intangible Assets, net
Intangible assets, net consist of the following (in thousands except for useful lives):
|
|
Remaining
Avg. Useful
lives (in
years)
|
|
|
September 30,
2017
|
|
|
December
31, 2016
|
|
Developed product technology
|
|
|
—
|
|
|
$
|
13,876
|
|
|
$
|
13,876
|
|
Intellectual property
|
|
|
—
|
|
|
|
1,004
|
|
|
|
1,004
|
|
License agreements
|
|
|
2
|
|
|
|
5,738
|
|
|
|
5,265
|
|
Trademarks and trade names
|
|
|
—
|
|
|
|
732
|
|
|
|
732
|
|
Customer-related
|
|
|
8
|
|
|
|
7,458
|
|
|
|
7,458
|
|
Distribution network
|
|
|
8
|
|
|
|
4,027
|
|
|
|
4,027
|
|
|
|
|
|
|
|
|
32,835
|
|
|
|
32,362
|
|
Less accumulated amortization
|
|
|
|
|
|
|
(27,353
|
)
|
|
|
(26,651
|
)
|
Intangible assets, net
|
|
|
|
|
|
$
|
5,482
|
|
|
$
|
5,711
|
|
Total amortization expense was $0.2 million and $0.3 million for the three months ended September 30, 2017 and 2016 and $0.7 million and $0.9 million for the nine months ended September 30, 2017 and 2016, respectively.
Future amortization expense related to intangible assets as of September 30, 2017 is as follows (in thousands):
Year Ending December 31,
|
|
|
|
|
Remainder of 2017
|
|
$
|
234
|
|
2018
|
|
|
801
|
|
2019
|
|
|
757
|
|
2020
|
|
|
756
|
|
2021
|
|
|
756
|
|
Thereafter
|
|
|
2,178
|
|
|
|
$
|
5,482
|
|
Accrued Expenses
Accrued expenses consist of the following (in thousands):
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
Commissions and sales milestones
|
|
$
|
4,378
|
|
|
$
|
4,202
|
|
Payroll and payroll related
|
|
|
2,322
|
|
|
|
2,384
|
|
Litigation settlements
|
|
|
4,400
|
|
|
|
4,400
|
|
Globus related accruals
|
|
|
—
|
|
|
|
3,830
|
|
Accrued professional fees
|
|
|
1,605
|
|
|
|
3,093
|
|
Royalties
|
|
|
1,131
|
|
|
|
1,347
|
|
Restructuring and severance accruals
|
|
|
470
|
|
|
|
1,328
|
|
Accrued taxes
|
|
|
237
|
|
|
|
404
|
|
Guaranteed collaboration compensation, current
|
|
|
4,529
|
|
|
|
2,228
|
|
Accrued interest
|
|
|
361
|
|
|
|
387
|
|
Other
|
|
|
3,173
|
|
|
|
3,986
|
|
Total accrued expenses
|
|
$
|
22,606
|
|
|
$
|
27,589
|
|
4. Discontinued Operations
As a result of the Globus Transaction, the Company has retrospectively revised the condensed consolidated statements of operations for the three and nine month periods ended September 30, 2016 to reflect the financial results from the International Business as discontinued operations.
11
At the closing of the Globus Transaction, Globus paid the Company $80 million in cash, subject to a working capital adjustment. On September 1, 2016, the Company used approximately $66 million of the consideration received to
(i) repay in full all amounts outstanding and due under the Company’s Facility Agreement between the Company and Deerfield Private Design Fund II, L.P., Deerfield Private Design International II, L.P., Deerfield Special Situations Fund, L.P. and Deerfield
Special Situations International Master Fund, L.P., dated as of March 17, 2014, as amended to date (the “Deerfield Facility Agreement”) and (ii) repay certain of its outstanding indebtedness under the Company’s
credit facility, as amended to date (the “Ame
nded Credit Facility”) with MidCap Funding IV, LLC (“MidCap”)
(described in Note 5), in each case, including debt-related costs. Also on September 1, 2016, the Company entered into a five-year term credit, security and guaranty agreement with Globus (the “
Globus Facility Agreement”), as further described in Note 5, pursuant to which Globus agreed to loan the Company up to $30 million, subject to the terms and conditions set forth in the Globus Facility Agreement.
The following table summarizes the calculation of the gain on sale (in thousands). The Company recorded an adjustment of $104,000 to the preliminary purchase price accounting during November 2016.
Consideration received
|
|
$
|
80,000
|
|
Cash included in assets sold
|
|
|
(4,250
|
)
|
Transaction costs
|
|
|
(5,960
|
)
|
Net cash proceeds
|
|
|
69,790
|
|
Less:
|
|
|
|
|
Product supply obligation
|
|
|
(1,927
|
)
|
Working capital adjustment
|
|
|
(2,295
|
)
|
Carrying value of business and assets sold
|
|
|
(57,633
|
)
|
Net gain on sale of business
|
|
$
|
7,935
|
|
The results of operations from discontinued operations presented below include certain allocations that management believes fairly reflect the utilization of services provided to the International Business. The allocations do not include amounts related to general corporate administrative expenses. Therefore, the results of operations from the International Business do not necessarily reflect what the results of operations would have been had the International Business operated as a stand-alone entity.
In connection with the Globus Transaction, the Company entered into a product manufacture and supply agreement (the “Supply Agreement”) with Globus, pursuant to which the Company agreed to supply to Globus certain of its implants and instruments (the “Products”), previously offered for sale by the Company in international markets at agreed-upon prices for a minimum term of three years, with the option for Globus to extend the term for up to two additional twelve month periods subject to Globus meeting specified purchase requirements. In accordance with authoritative guidance, certain intercompany sales transactions have been reported under continuing operations as the Company will have continuing involvement due to future sales to Globus under the Supply Agreement. In connection with the Globus Transaction, Globus received a credit of up to $1.9 million to be applied against Product purchases pursuant to the Supply Agreement during a six-month period commencing one month after the closing of the Globus Transaction, which has been included as a reduction of the consideration received for the sale of the International Business and has been recognized as revenue.
Included in the results of continuing operations for the three months ended September 30, 2016 are revenues of $1.4 million and cost of revenue of $1.8 million and for the nine months ended September 30, 2016 revenues of $8.9 million and cost of revenue of $8.9 million that represent intercompany transactions that, prior to the Globus Transaction, were eliminated in the Company's condensed consolidated financial statements.
During the three months ended September 30, 2017, the Company recorded $2.3 million in revenue and $2.0 million in cost of revenue from the Supply Agreement in continuing operations. During the nine months ended September 30, 2017, the Company recorded $9.1 million in revenue and $7.8 million in cost of revenue from the Supply Agreement in continuing operations.
12
In connection with the Globus Transaction, the Company included the interest expense of $2.
2
million and $7.2 million for the three and nine months ended September 30, 2016, respectively, incurred in connection with repayment from the proceeds from the Globus Transaction of all amounts outstanding and due under the Deerfield Facility Agreement an
d Amended Credit Facility in the loss from discontinued operations to the extent these debt facilities were repaid using the proceeds from the Globus Transaction.
The following table summarizes the results of discontinued operations for the periods presented in the condensed consolidated statements of operations and comprehensive loss for the three and nine months ended September 30, 2017 and 2016 (in thousands):
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
Discontinued operations
|
|
2017
|
|
|
2016
|
|
|
2017
|
|
|
2016
|
|
Revenues
|
|
$
|
—
|
|
|
$
|
18,043
|
|
|
$
|
—
|
|
|
$
|
40,146
|
|
Cost of revenues
|
|
|
—
|
|
|
|
11,469
|
|
|
|
—
|
|
|
|
19,694
|
|
Amortization of acquired intangible assets
|
|
|
—
|
|
|
|
555
|
|
|
|
—
|
|
|
|
1,291
|
|
Gross profit
|
|
|
—
|
|
|
|
6,019
|
|
|
|
—
|
|
|
|
19,161
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
—
|
|
|
|
16
|
|
|
|
—
|
|
|
|
50
|
|
Sales and marketing
|
|
|
—
|
|
|
|
2,865
|
|
|
|
—
|
|
|
|
12,391
|
|
General and administrative
|
|
|
16
|
|
|
|
1,440
|
|
|
|
157
|
|
|
|
5,079
|
|
Amortization of acquired intangible assets
|
|
|
—
|
|
|
|
155
|
|
|
|
—
|
|
|
|
622
|
|
Restructuring expenses
|
|
|
—
|
|
|
|
4
|
|
|
|
—
|
|
|
|
620
|
|
Net gain on sale of business
|
|
|
—
|
|
|
|
(5,361
|
)
|
|
|
—
|
|
|
|
(5,361
|
)
|
Total operating expenses
|
|
|
16
|
|
|
|
(881
|
)
|
|
|
157
|
|
|
|
13,401
|
|
Operating loss
|
|
|
(16
|
)
|
|
|
6,900
|
|
|
|
(157
|
)
|
|
|
5,760
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
—
|
|
|
|
(2,144
|
)
|
|
|
—
|
|
|
|
(7,194
|
)
|
Other income, net
|
|
|
—
|
|
|
|
243
|
|
|
|
—
|
|
|
|
1,892
|
|
Total other income (expense)
|
|
|
—
|
|
|
|
(1,901
|
)
|
|
|
—
|
|
|
|
(5,302
|
)
|
Loss from discontinued operations before taxes
|
|
|
(16
|
)
|
|
|
4,999
|
|
|
|
(157
|
)
|
|
|
458
|
|
Income tax provision
|
|
|
45
|
|
|
|
8,657
|
|
|
|
63
|
|
|
|
9,809
|
|
Loss from discontinued operations, net of applicable taxes
|
|
$
|
(61
|
)
|
|
$
|
(3,658
|
)
|
|
$
|
(220
|
)
|
|
$
|
(9,351
|
)
|
The following table summarizes the assets and liabilities of discontinued operations as of September 30, 2017 and December 31, 2016 related to the International Business (in thousands):
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
Assets
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
—
|
|
|
$
|
159
|
|
Inventories, net
|
|
|
—
|
|
|
|
48
|
|
Prepaid expenses and other current assets
|
|
|
236
|
|
|
|
157
|
|
Total current assets of discontinued operations
|
|
|
236
|
|
|
|
364
|
|
Other assets
|
|
|
52
|
|
|
|
61
|
|
Total assets of discontinued operations
|
|
$
|
288
|
|
|
$
|
425
|
|
Liabilities
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
—
|
|
|
$
|
43
|
|
Accrued expenses
|
|
|
283
|
|
|
|
689
|
|
Other current liabilities
|
|
|
—
|
|
|
|
—
|
|
Total current liabilities of discontinued operations
|
|
$
|
283
|
|
|
$
|
732
|
|
Total long-term liabilities of discontinued operations
|
|
|
—
|
|
|
|
—
|
|
Total liabilities of discontinued operations
|
|
$
|
283
|
|
|
$
|
732
|
|
13
Included in the cash flows for the nine months ended September 30, 2017 and 2016 are the following non-cash adjustments related to the discontinued operations (in thousands):
|
|
Three Months Ended September
30
,
|
|
|
Nine Months Ended September 30,
|
|
|
2017
|
|
|
2016
|
|
|
2017
|
|
|
2016
|
|
Depreciation and amortization
|
|
$
|
—
|
|
|
$
|
1,024
|
|
|
$
|
—
|
|
|
$
|
3,836
|
|
Provision for excess and obsolete inventory
|
|
$
|
—
|
|
|
$
|
15
|
|
|
$
|
—
|
|
|
$
|
151
|
|
Capital expenditures
|
|
$
|
—
|
|
|
$
|
211
|
|
|
$
|
—
|
|
|
$
|
1,319
|
|
Interest expense related to amortization of debt discount and debt issuance costs
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
2,052
|
|
5. Debt
MidCap Facility Agreement
The Company’s Amended Credit Facility with MidCap provides for a revolving credit commitment up to $22.5 million and a term loan commitment up to $5 million. As of September 30, 2017, $9.2 million was outstanding under the revolving line of credit and $2.9 million was outstanding under the term loan.
The term loan interest rate is priced at the London Interbank Offered Rate ("LIBOR") plus 8.0%, subject to a 9.5% floor, and the revolving line of credit interest rate remains priced at LIBOR plus 6.0%, reset monthly. At September 30, 2017, the revolving line of credit carried an interest rate of 7.24% and the term loan carried an interest rate of 9.5%. The borrowing base is determined, from time to time, based on the value of domestic eligible accounts receivable. As collateral for the Amended Credit Facility, the Company granted MidCap a security interest in substantially all of its assets, including all accounts receivable and all securities evidencing its interests in its subsidiaries. In addition to monthly payments of interest, monthly repayments of $0.2 million in 2017 and $0.3 million in 2018 are due through the maturity date in August 2018, with the remaining principal due on the maturity date. At September 30, 2017, $1.4 million remains as unamortized debt discount related to the Amended Credit Facility within the condensed consolidated balance sheet, which will be amortized over the remaining term of the Amended Credit Facility.
On March 30, 2017, the Company entered into a sixth amendment to the Amended Credit Facility with MidCap (the “Sixth Amendment”). The Sixth Amendment extends the date that the financial covenants of the Amended Credit Facility are effective from April 2017 to April 2018.
The Amended Credit Facility includes traditional lending and reporting covenants including a fixed charge coverage ratio to be maintained by the Company. The Amended Credit Facility also includes several event of default provisions, such as payment default, insolvency conditions and a material adverse effect clause, which could cause interest to be charged at a rate which is up to five percentage points above the rate effective immediately before the event of default or result in MidCap’s right to declare all outstanding obligations immediately due and payable. There is no assurance that the Company will be in compliance with the financial covenants of the Amended Credit Facility in the future.
Globus Facility Agreement
On September 1, 2016, the Company and Globus entered into the Globus Facility Agreement, pursuant to which Globus agreed to loan the Company up to $30 million, subject to the terms and conditions set forth in the Globus Facility Agreement. At the closing of the Globus Transaction, the Company made an initial draw of $25 million under the Globus Facility Agreement with an additional draw of $5 million made in the fourth quarter of 2016. As of September 30, 2017, the outstanding balance under the Globus Facility Agreement was $30.0 million, which becomes due and payable in quarterly payments of $0.8 million starting in September 2018, with a final payment of the remaining amount outstanding due on September 1, 2021. The term loan interest rate is priced at LIBOR plus 8.0% through September 1, 2018, and LIBOR plus 13.0%, thereafter. At September 30, 2017, unamortized debt discount related to the Globus Facility Agreement within the condensed consolidated balance sheet was $0.9 million.
As collateral for the Globus Facility Agreement, the Company granted Globus a first lien security interest in substantially all of its assets, other than accounts receivable and related assets, which secures the Globus Facility Agreement on a second lien basis. The Globus Facility Agreement includes traditional lending and reporting covenants including a fixed charge coverage ratio to be maintained by the Company. The financial covenants of the Globus Facility Agreement are not
14
effective until April 2018. T
here is no assurance that the Company will be in compliance with the financial covenants of the Globus Facility Agreement in the future. The Globus Facility Agreement also includes several event of default provisions, such as payment default, insolvency co
nditions and a material adverse effect clause, which could cause interest to be charged at a rate which is up to five percentage points above the rate effective immediately before the event of default or result in Globus’s right to declare all outstanding
obligations immediately due and payable.
Principal payments on the Company's debt are as follows as of September 30, 2017 (in thousands):
Year Ending December 31,
|
|
|
|
|
Remainder of 2017
|
|
$
|
600
|
|
2018
|
|
|
4,130
|
|
2019
|
|
|
12,658
|
|
2020
|
|
|
3,380
|
|
2021 and thereafter
|
|
|
21,666
|
|
Total
|
|
|
42,434
|
|
Add: capital lease principal payments
|
|
|
127
|
|
Less: unamortized debt discount and debt issuance costs
|
|
|
(2,296
|
)
|
Total
|
|
|
40,265
|
|
Less: current portion of long-term debt
|
|
|
(3,037
|
)
|
Long-term debt, net of current portion
|
|
$
|
37,228
|
|
6. Commitments and Contingencies
Leases
The Company leases certain equipment under capital leases which expire on various dates through 2017. The leases bear interest at rates ranging from 7.6% to 9.6% per annum, are generally due in monthly principal and interest installments and are collateralized by the related equipment. The Company also leases its buildings and certain equipment and vehicles under operating leases which expire on various dates through 2021. Future minimum annual lease payments under such leases are as follows as of September 30, 2017 (in thousands):
Year Ending December 31,
|
|
Operating
|
|
|
Capital
|
|
Remainder of 2017
|
|
$
|
452
|
|
|
$
|
64
|
|
2018
|
|
|
1,656
|
|
|
|
68
|
|
2019
|
|
|
1,542
|
|
|
|
—
|
|
2020
|
|
|
1,584
|
|
|
|
—
|
|
2021 and thereafter
|
|
|
971
|
|
|
|
—
|
|
|
|
$
|
6,205
|
|
|
|
132
|
|
Less: amount representing interest
|
|
|
|
|
|
|
(5
|
)
|
Present value of minimum lease payments
|
|
|
|
|
|
|
127
|
|
Current portion of capital leases
|
|
|
|
|
|
|
(127
|
)
|
Capital leases, less current portion
|
|
|
|
|
|
$
|
-
|
|
Rent expense under operating leases for the three months ended September 30, 2017 and 2016 was $0.3 million and $1.0 million, respectively, and for the nine months ended September 30, 2017 and 2016 was $0.9 million and $2.0 million, respectively. In June 2017, we received a cash payment from a landlord for tenant improvements in the amount of $0.5 million, which is amortized through the remainder of the lease term as an offset to rent expenses.
15
Litigation
The Company is and may become involved in various legal proceedings arising from its business activities. While the Company has no material accruals for pending litigation or claims for which accrual amounts are not disclosed in the Company’s consolidated financial statements, litigation is inherently unpredictable, and depending on the nature and timing of a proceeding, an unfavorable resolution could materially affect the Company’s future consolidated results of operations, cash flows or financial position in a particular period. The Company assesses contingencies to determine the degree of probability and range of possible loss for potential accrual or disclosure in the Company's consolidated financial statements. An estimated loss contingency is accrued in the Company’s consolidated financial statements if it is probable that a liability has been incurred and the amount of the loss can be reasonably estimated. Because litigation is inherently unpredictable and unfavorable resolutions could occur, assessing contingencies is highly subjective and requires judgments about future events. When evaluating contingencies, the Company may be unable to provide a meaningful estimate due to a number of factors, including the procedural status of the matter in question, the presence of complex or novel legal theories, and/or the ongoing discovery and development of information important to the matters. In addition, damage amounts claimed in litigation against the Company may be unsupported, exaggerated or unrelated to reasonably possible outcomes, and as such are not meaningful indicators of the Company’s potential liability.
Indemnifications
In the normal course of business, the Company enters into agreements under which it occasionally indemnifies third-parties for intellectual property infringement claims or claims arising from breaches of representations or warranties. In addition, from time to time, the Company provides indemnity protection to third-parties for claims relating to past performance arising from undisclosed liabilities, product liabilities, environmental obligations, representations and warranties, and other claims. In these agreements, the scope and amount of remedy, or the period in which claims can be made, may be limited. It is not possible to determine the maximum potential amount of future payments, if any, due under these indemnities due to the conditional nature of the obligations and the unique facts and circumstances involved in each agreement.
Royalties
The Company has entered into various intellectual property agreements requiring the payment of royalties based on the sale of products that utilize such intellectual property. These royalties primarily relate to products sold by Alphatec Spine and are calculated either as a percentage of net sales or in one instance on a per-unit sold basis. Royalties are included on the accompanying condensed consolidated statement of operations as a component of cost of revenues.
7. Orthotec Settlement
On September 26, 2014, the Company entered into a Settlement and Release Agreement, dated as of August 13, 2014, by and among the Company and its direct subsidiaries, including Alphatec Spine, Inc., Alphatec Holdings International C.V., Scient'x S.A.S. and Surgiview S.A.S.; HealthpointCapital, LLC, HealthpointCapital Partners, L.P., HealthpointCapital Partners II, L.P., John H. Foster and Mortimer Berkowitz III; and Orthotec, LLC and Patrick Bertranou, (the “Settlement Agreement”). Pursuant to the Settlement Agreement, the Company agreed to pay Orthotec, LLC $49.0 million in cash, including initial cash payments totaling $1.75 million, which the Company previously paid in March 2014, and an additional lump sum payment of $15.75 million, which the Company previously paid in April 2014. The Company agreed to pay the remaining $31.5 million in 28 quarterly installments of $1.1 million and one additional quarterly installment of $0.7 million, commencing October 1, 2014.
As of September 30, 2017, the Company has made installment payments in the aggregate of $30.7 million, with a remaining outstanding balance of $27.1 million (including interest). The Company has the right to prepay the amounts due without penalty. In addition, the unpaid balance of the amounts due accrues interest at the rate of 7% per year beginning May 15, 2014 until the amounts due are paid in full. The accrued but unpaid interest will be paid in quarterly installments of $1.1 million (or the full amount of the accrued but unpaid interest if less than $1.1 million) following the full payment of the $31.5 million in quarterly installments described above. No interest will accrue on the accrued interest. The Settlement Agreement provided for mutual releases of all claims in the Orthotec, LLC v. Surgiview, S.A.S, et al. matter in the Superior Court of California, Los Angeles County and all other related litigation matters involving the Company and its directors and affiliates.
8. Sale of Assets
On May 5, 2017, the Company entered into an agreement to sell certain inventory and intellectual property to a third party for $1.0 million in consideration, payable via a credit to future minimum royalties owed to the third party under an
16
existing exclusive license agreement between the
two parties. The Company recorded a net gain on sale of assets of $0.9 million which is included under operating expenses on the Company’s condensed consolidated statement of operations.
9. Net Loss Per Share
Basic earnings per share (“EPS”) is calculated by dividing the net income or loss available to common stockholders by the weighted average number of common shares outstanding for the period, without consideration for common stock equivalents. Diluted EPS is computed by dividing the net income available to common stockholders by the weighted average number of common shares outstanding for the period and the weighted average number of dilutive common stock equivalents outstanding for the period determined using the treasury-stock method. For purposes of this calculation, common stock subject to repurchase by the Company, options, performance-based restricted stock units and warrants are considered to be common stock equivalents and are only included in the calculation of diluted earnings per share when their effect is dilutive.
The following table presents the computation of basic and diluted net loss per share for continuing and discontinued operations (in thousands, except per share amounts):
|
|
Three Months Ended
September 30,
|
|
|
Nine Months Ended
September 30,
|
|
|
|
2017
|
|
|
2016
|
|
|
2017
|
|
|
2016
|
|
Numerator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations
|
|
$
|
(3,076
|
)
|
|
$
|
(10,063
|
)
|
|
$
|
(11,129
|
)
|
|
$
|
(16,220
|
)
|
Loss from discontinued operations
|
|
|
(61
|
)
|
|
|
(3,658
|
)
|
|
|
(220
|
)
|
|
|
(9,351
|
)
|
Net loss
|
|
$
|
(3,137
|
)
|
|
$
|
(13,721
|
)
|
|
$
|
(11,349
|
)
|
|
$
|
(25,571
|
)
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding
|
|
|
13,954
|
|
|
|
8,623
|
|
|
|
11,400
|
|
|
|
8,554
|
|
Weighted average unvested common shares subject
to repurchase
|
|
|
(16
|
)
|
|
|
(63
|
)
|
|
|
(51
|
)
|
|
|
(49
|
)
|
Weighted average common shares outstanding—basic
|
|
|
13,938
|
|
|
|
8,560
|
|
|
|
11,349
|
|
|
|
8,505
|
|
Effect of dilutive securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Conversion of preferred stock
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Options
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Warrants
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Weighted average common shares outstanding—diluted
|
|
|
13,938
|
|
|
|
8,560
|
|
|
|
11,349
|
|
|
|
8,505
|
|
Net loss per share, basic and diluted:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
(0.22
|
)
|
|
$
|
(1.17
|
)
|
|
$
|
(0.98
|
)
|
|
$
|
(1.91
|
)
|
Discontinued operations
|
|
$
|
(0.01
|
)
|
|
$
|
(0.43
|
)
|
|
$
|
(0.02
|
)
|
|
$
|
(1.10
|
)
|
Net loss per share, basic and diluted
|
|
$
|
(0.23
|
)
|
|
$
|
(1.60
|
)
|
|
$
|
(1.00
|
)
|
|
$
|
(3.01
|
)
|
The anti-dilutive securities not included in diluted
net
loss per share were as follows calculated on a weighted average basis (in thousands):
|
|
Three Months Ended
September 30,
|
|
|
Nine Months Ended
September 30,
|
|
|
|
2017
|
|
|
2016
|
|
|
2017
|
|
|
2016
|
|
Options to purchase common stock
|
|
|
2,948
|
|
|
|
594
|
|
|
|
1,861
|
|
|
|
611
|
|
Unvested restricted share awards
|
|
|
16
|
|
|
|
63
|
|
|
|
51
|
|
|
|
49
|
|
Series A Convertible Preferred Stock
|
|
|
4,848
|
|
|
|
—
|
|
|
|
4,135
|
|
|
|
—
|
|
Warrants to purchase common stock
|
|
|
-
|
|
|
|
8
|
|
|
|
1,013
|
|
|
|
8
|
|
Total
|
|
|
7,812
|
|
|
|
665
|
|
|
|
7,060
|
|
|
|
668
|
|
10. Stock Benefit Plans and Equity Transactions
Stock Benefit Plans
On October 4, 2016, the Company’s Board of Directors adopted the 2016 Employment Inducement Award Plan (the “Inducement Plan”). The Inducement Plan allows for the grant of options, restricted stock, restricted stock unit awards and performance unit awards to new employees of the Company by granting an award to such new employee as an inducement for such new employee to begin employment with the Company. The Inducement Plan currently has 1,550,000 shares of
17
common stock reserved for issuance, of which, 600,000 shares of common stock were added on March 30, 2017. Equity awards under the Inducement
Plan may only be granted to an employee who has not previously been an employee or member of the board of directors of the Company. The terms of the Inducement Plan are substantially similar to the terms of the Company’s 2016 Equity Incentive Plan with two
principal exceptions: (i) incentive stock options may not be granted under the Inducement Plan; and (ii) the annual compensation paid by the Company to specified executives will be deductible only to the extent that it does not exceed $1.0 million.
Stock Options
A summary of the Company’s stock option activity under the Plans and related information is as follows (in thousands, except as indicated and per share data), as adjusted for the 1-for-12 reverse stock split:
|
|
Shares
|
|
|
Weighted
average
exercise
price
|
|
|
Weighted
average
remaining
contractual
term
(in years)
|
|
|
Aggregate
intrinsic
value
|
|
Outstanding at December 31, 2016
|
|
|
1,155
|
|
|
$
|
12.17
|
|
|
|
7.75
|
|
|
$
|
—
|
|
Granted
|
|
|
2,686
|
|
|
$
|
1.91
|
|
|
|
|
|
|
|
|
|
Forfeited
|
|
|
(383
|
)
|
|
$
|
12.18
|
|
|
|
|
|
|
|
|
|
Outstanding at September 30, 2017
|
|
|
3,458
|
|
|
$
|
4.20
|
|
|
|
8.94
|
|
|
$
|
1,276
|
|
Options vested and exercisable at September 30, 2017
|
|
|
421
|
|
|
$
|
17.91
|
|
|
|
4.20
|
|
|
$
|
10
|
|
Options vested and expected to vest at
September 30, 2017
|
|
|
3,096
|
|
|
$
|
4.44
|
|
|
|
8.86
|
|
|
$
|
1,113
|
|
The weighted-average grant-date fair value per share of stock options granted during the nine months ended September 30, 2017 was $1.30.
As of September 30, 2017, there was $3.7 million of unrecognized compensation expense for stock options which is expected to be recognized on a straight-line basis over a weighted average period of approximately 3.5 years.
Restricted Stock Awards and Units
The following table summarizes information about the restricted stock awards, restricted stock units and performance-based restricted units activity (in thousands, except as indicated and per share data), as adjusted for the 1-for-12 reverse stock split:
|
|
Shares
|
|
|
Weighted
average
grant
date fair
value
|
|
|
Weighted
average
remaining
recognition
period
(in years)
|
|
Unvested at December 31, 2016
|
|
|
1,092
|
|
|
$
|
7.48
|
|
|
|
3.02
|
|
Awarded
|
|
|
357
|
|
|
$
|
2.15
|
|
|
|
|
|
Vested
|
|
|
(81
|
)
|
|
$
|
4.49
|
|
|
|
|
|
Forfeited
|
|
|
(238
|
)
|
|
$
|
2.30
|
|
|
|
|
|
Unvested at September 30, 2017
|
|
|
1,130
|
|
|
$
|
4.50
|
|
|
|
2.78
|
|
As of September 30, 2017, there was $2.6 million of unrecognized compensation expense for restricted stock awards which is expected to be recognized on a straight-line basis over a weighted average period of approximately 2.8 years.
Total share based compensation expense recognized in general and administrative, selling and marketing, research and development expenses and cost of sales were $1.4 million, $0.2 million, $0.1 million and $12,000 for the nine months ended September 30, 2017, and $0.2 million, $31,000, $18,000 and $5,000 for the nine months ended September 30, 2016, respectively.
18
Shares Reserved For Future Issuance
As of September 30, 2017, the Company had reserved shares of its common stock for future issuance as follows:
|
|
|
|
|
|
|
|
|
|
Shares Reserved
|
Stock options outstanding
|
|
|
3,458
|
Unvested restricted stock award
|
|
|
1,130
|
Employee stock purchase plan
|
|
|
451
|
Available for future grants under the Inducement Plan
|
|
|
440
|
Series A convertible preferred stock
|
|
|
3,686
|
Warrants to purchase common stock
|
|
|
9,904
|
Total shares reserved
|
|
|
19,069
|
Private Placement Transaction
On March 22, 2017, the Company entered into the Securities Purchase Agreement with certain institutional and accredited investors, including certain directors, executive officers and employees of the Company (collectively, the “Purchasers”), providing for the sale by the Company of 1,809,628 shares of the Company’s common stock at a purchase price of $2.00 per share (the “Common Shares”), 15,245 shares of newly designated Series A Convertible Preferred Stock at a purchase price of $1,000 per share (which shares are convertible into approximately 7,622,372 shares of common stock, and were initially subject to limitations on conversion prior to the approval by the Company’s stockholders (“Stockholder Approval”) as required in accordance with the NASDAQ listing rules), and warrants to purchase up to 9,432,000 shares of the Company’s common stock at an exercise price of $2.00 per share (the “Purchaser Warrants”), in a private placement (the “Private Placement”). The Purchaser Warrants became exercisable following Stockholder Approval, are subject to certain ownership limitations, and expire five years after June 15, 2017, the date Stockholder Approval was received. An aggregate of $2.35 million of shares of Series A Convertible Preferred Stock, which s
hares are convertible into approximately 1,175,000 shares of common stock, and Purchaser Warrants to purchase up to 1,175,000 shares of common stock were purchased by certain directors, executive officers and employees of the Company. On June 15, 2017, shareholder approval was received for the conversion of the Series A Convertible Preferred Stock and 7,797 shares of preferred stock were converted into 3,936,225 shares of common stock as of September 30, 2017.
The Company also entered into an engagement letter (the “Engagement Letter”) on March 1, 2017 with H.C. Wainwright & Co., LLC (“Wainwright”), pursuant to which Wainwright agreed to serve as exclusive placement agent for the issuance and sale of the securities in the Private Placement. Pursuant to the Engagement Letter, the Company issued to Wainwright and its designees warrants to purchase up to an aggregate of 471,600 shares of the Company’s common stock (the “Wainwright Warrants,” and together with the Purchaser Warrants, the “Common Stock Warrants”). The Wainwright Warrants have substantially the same terms as the Purchaser Warrants, except that the Wainwright Warrants have an exercise price equal $2.50 per share. The Private Placement, including the issuance of the Wainwright Warrants, closed on March 29, 2017, with aggregate gross proceeds to the Company of approximately $18.9 million.
Series A Convertible Preferred Stock
On March 29, 2017, in connection with the closing of the Private Placement, the Company filed a Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock with the Secretary of State of the State of Delaware (the “Certificate of Designation”). The shares of Series A Convertible Preferred Stock have a stated value of $1,000 per share and were convertible into approximately 500 shares of common stock upon receipt of Stockholder Approval. Prior to the date that Stockholder Approval was obtained, the Certificate of Designation limited the number of shares of common stock that were issuable upon conversion of the Series A Convertible Preferred Stock such that, when aggregated with the shares of common stock issued in the Private Placement, such issuances did not exceed 19.99% of the Company’s issued and outstanding common stock, as required by NASDAQ listing rules. In addition, the Company’s directors, executive officers and employees who participated in the Private Placement were unable to convert shares of Series A Convertible Preferred Stock until Stockholder Approval was obtained, pursuant to the NASDAQ listing rules. The Series A Convertible Preferred Stock will be entitled to dividends on an as-if-converted basis in the same form as any dividends actually paid on shares of common stock or other securities. Except as otherwise required by law, the holders of Series A Convertible Preferred Stock will have no right to vote on matters submitted to a vote of the Company’s stockholders. Without the prior written consent of 75% of the outstanding shares of Series A Convertible Preferred Stock, the Company may not:
19
(a) alter or change adversely the powers, preferences or rights given to the Series A Convertible Preferred Stock or alter or amend the Certificate of Designation, (b) amend the Company’s certificate of incorporation or other charter do
cuments in any manner that adversely affects any rights of the holders of Series A Convertible Preferred Stock, (c) increase the number of authorized shares of Series A Convertible Preferred Stock, or (d) enter into any agreement with respect to any of the
foregoing. In the event of the dissolution and winding up of the Company, the proceeds available for distribution to the Company’s stockholders shall be distributed pari passu among the holders of the shares of common stock and Series A Convertible Prefer
red Stock, pro rata based upon the number of shares held by each such holder, as if the outstanding shares of Series A Convertible Preferred Stock were convertible, and were converted, into shares of common stock.
Common Stock Warrants
The Common Stock Warrants are exercisable for cash or, solely, if at any time after the six-month anniversary of the closing date of the Private Placement, there is not an effective registration statement or prospectus registering the issuance of shares of the Company’s common stock upon exercise of the Common Stock Warrants, by cashless exercise. The exercise price of the Common Stock Warrants is subject to adjustment in the case of stock dividends or other distributions on shares of common stock or any other equity or equity equivalent securities payable in shares of common stock, stock splits, stock combinations, reclassifications or similar events affecting the Company’s common stock, and also, subject to limitations, upon any distribution of assets, including cash, stock or other property to the Company’s stockholders.
Prior to the exercise, holders of the Common Stock Warrants will not have any of the rights of holders of the common stock purchasable upon exercise, including voting rights; however, the holders of the Common Stock Warrants will have certain rights to participate in distributions or dividends paid on the Company’s common stock to the extent set forth in the Common Stock Warrants.
The Common Stock Warrants may not be exercised by the holder to the extent that the holder, together with its affiliates, would beneficially own, after such exercise more than 4.99% of the shares of the Company’s common stock then outstanding (subject to the right of the holder to increase or decrease such beneficial ownership limitation upon notice to us, provided that such limitation cannot exceed 9.99%) and provided that any increase in the beneficial ownership limitation shall not be effective until 61 days after such notice is delivered.
If the Company effects a fundamental transaction, then upon any subsequent exercise of any Common Stock Warrants, the holder thereof shall have the right to receive, for each share of common stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of the successor’s or acquiring corporation’s common stock or of the Company’s common stock, if the Company is the surviving corporation, and any additional consideration receivable as a result of such fundamental transaction by a holder of the number of shares of common stock into which the Common Stock Warrants were exercisable immediately prior to such fundamental transaction. In addition, in the event of a fundamental transaction (other than a fundamental transaction not approved by the Company’s Board of Directors), the Company or any successor entity shall, at the holder’s option, purchase the holder’s Common Stock Warrants for an amount of cash equal to the value of the Common Stock Warrants as determined in accordance with the Black Scholes option pricing model. A fundamental transaction as described in the Common Stock Warrants generally includes any merger with or into another entity, sale of all or substantially all of the Company’s assets, tender offer or exchange offer, reclassification of the Company’s common stock or the consummation of a transaction whereby another entity acquires more than 50% of the Company’s outstanding voting stock.
In accordance with authoritative guidance, the Purchaser Warrants and the Wainwright Warrants are classified within additional paid in capital on the condensed consolidated balance sheet.
11. Income Taxes
To calculate its interim tax provision, at the end of each interim period the Company estimates the annual effective tax rate and applies that to its ordinary quarterly earnings. In addition, the effect of changes in enacted tax laws or rates or tax status is recognized in the interim period in which the change occurs. The computation of the annual estimated effective tax rate at each interim period requires certain estimates and significant judgment including, but not limited to, the expected operating income for the year, projections of the proportion of income earned and taxed in foreign jurisdictions, permanent and temporary differences between book and tax amounts, and the likelihood of recovering deferred tax assets generated in the current year. The accounting estimates used to compute the provision for income taxes may change as new events occur, additional information is obtained or the tax environment changes.
20
Intraperiod tax allocation rules require the Company to allocate the provision for income taxes between continuing operations and oth
er categories of earnings, such as discontinued operations. In periods in which the Company has a year-to-date pre-tax loss from continuing operations and pre-tax income in other categories of earnings, such as discontinued operations, the Company must all
ocate the tax provision to the other categories of earnings, and then record a related tax benefit in continuing operations.
The Company recognizes interest and penalties related to uncertain tax positions as a component of the income tax provision. The Company’s unrecognized tax benefits increased by less than $0.1 million during the nine months ended September 30, 2017. The increase in unrecognized tax benefits during the nine months ended September 30, 2017 was primarily related to foreign currency fluctuations partially offset by a decrease in reserves for taxes related to imputed interest on trade receivables. The Company recognized a tax benefit of $35 thousand related to decrease in tax reserves related to imputed interest on trade receivables in the condensed consolidated statement of operations for the three and nine months ended September 30, 2017.
The unrecognized tax benefits at September 30, 2017 and December 31, 2016 were $9.4 million and $9.3 million, respectively. With the facts and circumstances currently available to the Company, it is reasonably possible that the amount of reserves that could reverse over the next 12 months is approximately $2.8 million. The Company is not currently under examination by the Internal Revenue Service, or state or local tax authorities; however, Scient’x’s 2013 and 2014 tax years are currently under audit by the French tax authorities. The Company completed the audit of its 2013 tax year in Texas, which resulted in no additional taxes.
The income tax provision from continuing operations for the three and nine months ended September 30, 2017 consists primarily of state income taxes partially offset by a decrease in income tax contingency reserves. The Company’s effective tax rate of 0.30% and 0.51% for the three and nine months ended September 30, 2017, respectively, differs from the federal statutory rate of 35% primarily due to a full valuation allowance and state income taxes partially offset by a decrease in income tax contingency reserves.
12. Related Party Transactions
For the nine months ended September 30, 2017 and 2016, respectively, the Company incurred expenses of less than $0.1 million related to HealthpointCapital, LLC. As of September 30, 2017, the Company also had a liability of less than $0.1 million payable to HealthpointCapital, LLC for travel and administrative expenses.
In July 2016, the Company entered into a forbearance agreement with HealthpointCapital, LLC, HealthpointCapital Partners, L.P., and HealthpointCapital Partners II, L.P. (collectively, "HealthpointCapital"), pursuant to which HealthpointCapital, on behalf of the Company, paid $1.0 million of the $1.1 million payment due and payable by the Company to Orthotec on July 1, 2016 and agreed to not exercise its contractual rights to seek an immediate repayment of such amount. Pursuant to this forbearance agreement, the Company repaid this amount in September 2016. The Company and HealthpointCapital also entered into an agreement for joint payment of settlement whereby HealthpointCapital has agreed to contribute $5 million to the $49 million Orthotec settlement amount.
13. Restructuring
In connection with the Globus Transaction (described in Note 4), the Company terminated employment agreements with several executive officers, including the chief executive officer and the chief financial officer, and commenced an employee headcount reduction program. The Company had additional headcount reductions in February 2017, and recorded restructuring expenses of $0.1 million and $1.9 million for the three and nine months ended September 30, 2017, related to severance liability and post-employment benefits. A rollforward of the accrued restructuring liability is presented below (in thousands):
Balance as of January 1, 2017
|
|
$
|
1,328
|
|
Accrued restructuring charges
|
|
|
1,231
|
|
Payments
|
|
|
(940
|
)
|
Balance as of March 31, 2017
|
|
|
1,619
|
|
Accrued restructuring charges
|
|
|
528
|
|
Payments
|
|
|
(1,115
|
)
|
Balance as of June 30, 2017
|
|
$
|
1,032
|
|
Accrued restructuring charges
|
|
|
139
|
|
Payments
|
|
|
(701)
|
|
Balance as of September 30, 2017
|
|
$
|
470
|
|
21
All activities and costs are expected to be completed during 2018
.
On July 6, 2015, the Company announced a restructuring of its manufacturing operations in California in an effort to improve its cost structure. The restructuring included a reduction in workforce and closing the California manufacturing facility. The Company incurred expenses of $1.6 million and $1.8 million during the three and nine months ended September 30, 2016, related to these restructuring activities.
14. Subsequent events
On October 2, 2017, the Company entered into Securities Purchase Agreements (collectively, the “Purchase Agreements”) with accredited investors Patrick Miles and Quentin Blackford (collectively, the “Purchasers”), pursuant to which Messrs. Miles and Blackford have agreed, subject to the satisfaction of customary closing conditions under the Purchase Agreements, to purchase from the Company, collectively, no less than 1,549,116 and as many as 1,769,912 shares of its common stock at a purchase price of $2.26 per share. The closing of the share purchases under the Purchase Agreements by Messrs. Miles and Blackford is expected to occur on or before January 1, 2018, subject to the satisfaction of customary closing conditions.
The aggregate gross proceeds of the issuance and sale of the shares to Messrs. Miles and Blackford pursuant to the Purchase Agreements will be approximately $3.5 million to $4 million.
As more fully described in Note 10, the Company issued warrants to purchase shares of the Company’s common stock in connection with a private placement transaction that closed on March 29, 2017. During October 2017, we received proceeds of approximately $1.7 million in connection with the exercise of approximately 0.9 million warrants. In addition, these warrants contain a feature that could require the transfer of cash in the event of a Fundamental Transaction, as defined in such warrants (other than a Fundamental Transaction not approved by the Company’s Board of Directors). As of September 30, 2017, the warrant holders did not control the Company’s Board of Directors, and therefore, since potential future cash settlement was deemed to be within the Company’s control, the warrants were classified in stockholder’s equity in accordance with the authoritative accounting guidance. Subsequent to September 30, 2017, concurrent with the appointment of Ward W. Woods to the Company’s board of directors effective October 17, 2017, the holders of the warrants represent a majority of the Board of Directors. As a result of this change, the Company may be required to re-classify the warrants as a liability in accordance with the authoritative accounting guidance. The Company is currently assessing the impact of this change, if any, on its financial statements for the three months and year ended December 31, 2017.
22