SECURITIES & EXCHANGE COMMISSION EDGAR FILING
Apollo Endosurgery, Inc.
Form: 10-K
Date Filed: 2019-03-18
Corporate Issuer CIK: 1251769
© Copyright 2019, Issuer Direct Corporation. All Right Reserved. Distribution of this document is strictly prohibited, subject to the terms of use.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FORM 10-K
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2018
OR
☒
☐
For the transition period from to
Commission file number: 001-35706
APOLLO ENDOSURGERY, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
1120 S. Capital of Texas Highway, Building 1, Suite #300, Austin, Texas
(Address of principal executive offices)
16-1630142
(I.R.S. Employer
Identification No.)
78746
(Zip Code)
Registrant’s telephone number (512) 279-5100
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Stock, $0.001 par value per share
Name of Exchange on which registered
The Nasdaq Global Market
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or
for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☒
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,”
“accelerated filer”, “smaller reporting company”, and "emerging growth company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ☐
Non-accelerated filer ☐
Accelerated filer ☒
Smaller reporting company ☒
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section
13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The aggregate market value of the common stock held by non-affiliates of the registrant (assuming for these purposes, but without conceding, that all executive officers and directors of the registrant are affiliates of the registrant)
was computed based on the adjusted close price of $6.98 as reported on the Nasdaq Global Market on June 29, 2018 is $98,996,893.
As of February 28, 2019, there were 21,913,243 shares of the issuer’s $0.001 par value common stock issued and outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Definitive Proxy Statement for the registrant’s 2019 Annual Meeting of Stockholders are incorporated by reference into Part III of this Form 10-K. The Definitive Proxy Statement will be filed no later than 120 days
after the close of the registrant’s fiscal year ended December 31, 2018.
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APOLLO ENDOSURGERY, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Item 15.
Item 16.
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosure
PART I
PART II
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures about Market Risk
Financial Statements
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
PART III
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accountant Fees and Services
PART IV
Exhibits and Financial Statement Schedules
Form 10-K Summary
Signatures
Index to Consolidated Financial Statements
Page
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FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains forward-looking statements. The forward-looking statements are contained principally in the sections entitled “Risk
Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business.” These statements involve known and
unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results,
performances or achievements expressed or implied by the forward-looking statements. In some cases, you can identify forward-looking statements by terms
such as “anticipates,” “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would,” and similar
expressions intended to identify forward-looking statements. Forward-looking statements reflect our current views with respect to future events, are based on
assumptions (disclosed or undisclosed) and may be limited or incomplete, and are subject to risks, uncertainties and other important factors. We discuss many
of these risks in this Annual Report on Form 10-K in greater detail in the section entitled “Risk Factors” under Part I, Item 1A below. Given these risks,
uncertainties and other important factors, you should not place undue reliance on these forward-looking statements as predictions of future events. Also,
forward-looking statements represent our estimates and assumptions only as of the date of this Annual Report on Form 10-K. You should read this Annual
Report on Form 10-K and the documents that we incorporate by reference in and have filed as exhibits to this Annual Report on Form 10-K, completely and with
the understanding that our actual future results may be materially different from what we expect.
In addition, statements that "we believe" and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon
information available to us as of the date of this Annual Report on Form 10-K, and while we believe such information forms a reasonable basis for such
statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into,
or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these
statements.
Except as required by law, we assume no obligation to update any forward-looking statements publicly, or to update the reasons actual results could differ
materially from those anticipated in any forward-looking statements, even if new information becomes available in the future.
As used herein, “Apollo,” “we,” “us,” “our” and “Company” refer to Apollo Endosurgery, Inc., unless the context otherwise requires.
In this Annual Report on Form 10-K, references to U.S. dollars or USD or $ are to U.S. Dollars.
Investors and others should note that we announce material financial information to our investor using our investor relations website (https://ir.apolloendo.com/).
SEC filings, public conference calls and webcasts. We use these channels to communicate with our members and the public about our company, our services,
and other issues. Therefore, we encourage investors, the media, and others interested in our company to review the information we provide on the channels
listed above.
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ITEM 1. BUSINESS
Overview
PART I
We are a medical technology company primarily focused on the design, development and commercialization of innovative medical devices to advance
gastrointestinal therapeutic endoscopy.
Our strategic focus and our future revenue growth is expected to come from our Endo-bariatric product portfolio, which consists of the OverStitch TM Endoscopic
Suturing System and Orbera® managed weight loss system. In the past, a portion of our product revenues has come from the Surgical product line, which
consisted of the Lap-Band® System and related laparoscopic accessories but this line was divested in December 2018.
We are one of the market share leaders in less invasive devices that treat various gastrointestinal ("GI") conditions, ranging from gastrointestinal defect repairs
to the interventional treatment of obesity. Our products are used by gastroenterologists and bariatric surgeons in a variety of settings to provide interventional
therapy to patients who suffer from obesity and the many co-morbidities associated with obesity, other GI conditions including closure of acute perforations and
chronic fistulas; inadvertent perforation of the GI tract; tissue closure after the removal of abnormal lesions in the esophagus, stomach or colon (also known as
endoscopic submucosal dissections and endoscopic mucosal resections) and in the treatment of swallowing disorders (peroral endoscopic myotomy, or
"POEM") as well as to suture in place esophageal stents in order to prevent their migration.
We believe that obesity is a chronic disease that places a tremendous burden on healthcare systems and their costs worldwide. The optimal clinical outcome for
a substantial portion of patients suffering from obesity will require interventional treatments. As a result, our product portfolio consists of interventional devices
that fill the gap between low efficacy drug treatments for obesity and highly-invasive, anatomy-altering bariatric stapling procedures.
Corporate Background
Apollo was founded in 2005 and is currently incorporated in Delaware with headquarters in Austin, Texas. The Company was founded to develop and
commercialize innovations originating from a collaboration of physicians from the Mayo Clinic, Johns Hopkins University, Medical University of South Carolina,
the University of Texas Medical Branch and the Chinese University of Hong Kong, who called themselves the Apollo Group. The work of the Apollo Group
resulted in a significant portfolio of patents in the field of flexible endoscopy and minimally invasive surgery aimed at minimizing the trauma of surgical access by
taking advantage of natural orifices to deliver surgical tools to targeted areas.
In December 2013, we entered into an asset purchase agreement to acquire the obesity intervention division of Allergan, Inc. In conjunction with this purchase
agreement, we entered into several agreements whereby Allergan agreed to provide manufacturing and distribution support over a two-year period as we
established our own manufacturing and worldwide distribution capabilities.
Following this acquisition, we established offices in England, Australia, Italy and Brazil that oversee regional sales and distribution activities outside the U.S.; a
manufacturing facility in Costa Rica; and a device analysis lab in California. All other activities are managed and operated from our facilities in Austin, Texas.
In December 2016, we completed a business combination (the "Merger") with Lpath, Inc. ("Lpath"), a publicly traded company. Following the Merger, Lpath was
renamed "Apollo Endosurgery, Inc." and our common stock began trading on The Nasdaq Global Market under the symbol "APEN."
In December 2018, Apollo entered into an Asset Purchase Agreement ("Purchase Agreement") with ReShape Lifesciences, Inc. ("ReShape") pursuant to which,
among other things, ReShape acquired from Apollo substantially all of our assets exclusively related to the Surgical product line for $10.0 million in cash and
future cash consideration. As additional consideration, we also received from ReShape substantially all of their assets exclusively related to their intragastric
balloon product line. On December 31, 2018, the Company ceased sales of ReShape's intragastric balloon product.
"Orbera", "OverStitch", the Apollo logo and other trademarks or service marks of Apollo Endosurgery, Inc. appearing in this annual report are the property of
Apollo Endosurgery, Inc. Other trademarks, service marks or trade names appearing in this annual report are the property of their respective owners. We do
not intend our use or display of other companies' trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of
us, by these other companies.
Our principal executive offices are located at 1120 S. Capital of Texas Highway, Building 1, Suite 300, Austin, Texas 78746. Our telephone number is
(512) 279-5100. We have a Code of Business Conduct and Ethics that applies to all of our
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directors, officers and employees. A copy of this document is published on the Apollo website at www.apolloendo.com/compliance and may be obtained free
of charge by writing to the Director of Compliance at our principal executive office or by email at investor-relations@apolloendo.com. The information in or
accessible through the Apollo website referred to above are not incorporated into, and are not considered part of, this report.
Overview of the Market
The majority of procedures performed using our Endo-bariatric products are either related to gastrointestinal defect and complication management or bariatric
(weight loss) interventional treatment.
Interventional and therapeutic gastroenterology is a high growth area within medicine and our suturing product is used for patient treatment needs in both the
upper and lower GI tract. Examples of upper GI applications include fistula closure, esophageal stent fixation, and closure for POEM. Fistulas are chronic or
acute defects that can form between two cavities in the GI tract, often occurring as a result of abdominal surgery. Esophageal stents are often used as part of the
treatment of esophageal cancers and premature migration of the stent is common. Clinical evidence shows that esophageal stents that are not fixed in place will
have as high as a 60% migration rate. Suturing stents in place helps reduce stent migration, preventing further procedures and complications for the patient.
Achalasia is a condition where a patient has difficulty swallowing. As the incidence of achalasia increases, there is growing interest in endoscopic treatment
options that can be offered, such as POEM. Suturing following the esophageal muscle dissection and release during a POEM presents a quick and low profile
solution for the patient.
In the lower GI tract, there are over 20 million colonoscopies performed annually. Cancer screening followed by the endoscopic resection of flat gastrointestinal
tumors or polyps can provide patients with a viable option to colorectal surgery. Suturing the resection site aids in healing and helps prevent delayed bleeding
following the procedure.
Obesity as a disease is increasing worldwide. In the U.S., it is estimated that 78 million adults are obese or clinically obese with a body mass index ("BMI") of 30
or more. It is further estimated that 24 million adults are severely or morbidly obese in the U.S., with a BMI greater than 40. Over 650 million people around the
world are considered obese.
Traditional obesity intervention has been bariatric surgery (gastric bypass, sleeve gastrectomy and laparoscopic adjustable gastric banding), which is mostly
performed laparoscopically. Today, based on U.S. population demographics and physician society reported bariatric procedure volumes, less than 2% of the
population eligible for bariatric surgery have a procedure. We believe that the primary detractor from bariatric surgery is patient fear; fear of surgery in general,
but more specifically fear associated with the highly-invasive nature of bariatric surgery, permanent anatomical alteration, potential for non-permanent results and
the post-operative severe complications that can be associated with bariatric surgery.
Apollo's Strategy
Our objective is to provide products that advance gastrointestinal therapeutic endoscopic solutions for a wide range of interventional patient needs ranging from
gastrointestinal defect repairs to the interventional treatment of obesity. Our "Endo-bariatric" products allow these treatments to be delivered by an endoscopist
endolumenally with a flexible endoscope and thus provide patients with therapy options other than or prior to traditional surgery.
The key elements of our strategy include:
•
•
•
Support the adoption of our Endo-bariatric products - We accomplish this today through our medical education activities, field sales support,
and clinical investments that support product adoption and use. In addition, when appropriate, we support adoption through patient education
and outreach initiatives.
Continue to deliver innovative products and broaden the product portfolio -We intend to broaden our portfolio of products through internal
product development efforts and will consider acquisitions that complement our current business.
Expand into new markets -We intend to continue to pursue regulatory clearance for our products and improved distribution in key international
markets where we believe there is or will be strong market demand for our products.
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Apollo Products
Endo-bariatrics
The Apollo Endo-bariatric products consist primarily of the OverStitch Endoscopic Suturing System and the Intragastric Balloon System (most often branded as
Orbera). For the year ended December 31, 2018, 68% of total revenues were from sales of the Endo-bariatric products. Of our total Endo-bariatric sales, 57%
related to the OverStitch Endoscopic Suturing System and 43% related to the Orbera Intragastric Balloon System products.
OverStitch Endoscopic Suturing System
The OverStitch and OverStitch Sx Endoscopic Suturing System ("ESS", "OverStitch", or "Sx") enables advanced endoscopic procedures by allowing physicians
to place full-thickness sutures and secure the approximation of tissue through a flexible endoscope. OverStitch and OverStitch Sx are currently the only U.S.
cleared flexible endoscopic suturing device capable of full-thickness suturing of tissue. OverStitch is a single-use suturing device that is attached to a flexible
endoscope and allows a physician to access portions of a patient's GI tract and place full thickness sutures to approximate the tissue of the GI tract. The
OverStitch Endoscopic Suturing System received U.S. Food and Drug Administration ("FDA") 510(k) clearance in August 2008 and CE Mark in November 2012.
The OverStitch Sx Endoscopic Suturing System received FDA 510(k) clearance in June 2018 and CE Mark in November 2018.
The OverStitch device that was 510(k) cleared in August of 2008 is compatible with a specific dual channel flexible endoscope that has limited market
presence, representing less than five percent of the flexible endoscopes in hospitals and clinics around the world. Beginning in November 2018, we began the
first commercial shipments of the OverStitch Sx that is compatible with four major scope manufacturers and over 20 single-channel flexible endoscopes with
diameters ranging from 8.8 mm to 9.8 mm. These Sx compatible single-channel endoscopes represents the majority of flexible endoscopes in hospitals and
clinics around the world today.
We believe that the functionality of the OverStitch devices allows them to be used for a broad number of gastrointestinal as well as bariatric applications. Since
its market introduction in 2008, over 35,000 OverStitch units have been sold for procedures worldwide.
We estimate that approximately 40% of procedures performed with OverStitch were in connection with the treatment of GI defects and the remaining use was
for the interventional treatment of obesity.
One of the most promising newly developed weight-loss procedures is commonly referred to as endoscopic sleeve gastroplasty ("ESG"), which transorally uses
endoscopic suturing with OverStitch to reduce the volume of the stomach and form a small diameter sleeve, similar to the goal of a surgical sleeve gastrectomy
procedure but without the invasiveness and need for amputation of the gastric remnant. The advantages of the ESG as compared to a surgical sleeve include
maintenance of the structural integrity of the gastric wall, reversibility, relative ease of revision or maintenance, lower procedure adverse events, and reduced
costs.
ESG is based on the placement of full-thickness sutures to secure the approximation of tissue which is the labeled indication of OverStitch. However, the labeled
indication of the OverStitch device currently does not specifically identify the ESG procedure. The first multi-center study was presented in May 2016 at
Digestive Disease Week which was updated to a 24-month follow-up study and was published in April 2017 in Obesity Surgery, the Journal of Metabolic Surgery
and Allied Care. This was a three center (two in the U.S. and one in Spain) study of medical records of patients who underwent ESG from January 2013 to
November 2015. All procedures were performed in a similar fashion using the OverStitch device to endolumenally place full-thickness sutures to fold in the
greater curvature of the stomach, and reduce the volumetric capacity of the stomach in order to lower a patient's caloric intake and induce weight loss.
A total of 248 patients were included in the study. Patient BMI at the start of the study was 37.8, plus or minus 5.6.
•
•
•
215 patients reached 6-months follow-up and the study reported an average percentage total body weight loss ("TBWL") of 15.2%.
57 patients reached 24-months follow-up and the study reported an average TBWL of 18.6% .
There was no significant difference in weight loss between the three centers.
Five serious adverse events occurred: two perigastric inflammatory fluid collections that resolved with percutaneous drainage and antibiotics, one self-limited
hemorrhage from splenic laceration, one pulmonary embolism 72 hours after the procedure, and one pneumoperitoneum and pneumothorax requiring chest tube
placement. All five patients recovered fully. The
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suturing-related serious adverse events were associated by the study's authors with suturing to reduce the fundus part of the stomach and as a result, reducing
the fundus is no longer part of the standard ESG technique.
In 2017, we entered into a clinical trial agreement with The Mayo Clinic in Rochester, Minnesota to undertake the Multi-center ESG Randomized Interventional
Trial ("MERIT-Trial") to evaluate the long-term safety and efficacy of ESG compared to efficacy endpoints set forth in a consensus statement of the American
Society for Gastrointestinal Endoscopy ("ASGE") and the American Society of Metabolic Bariatric Surgery ("ASMBS") and its impact on obesity related
comorbidities in patients with obesity and BMI between 30-45.
The MERIT-Trial is expected to enroll two hundred patients, stratified into three groups (Obesity, Obesity with hypertension, Obesity with diabetes). The trial will
have two levels: (1) the randomized study phase with primary outcomes for both treatment and control participants evaluated at twelve months, and (2) the
crossover, non-randomized study phase with outcomes for (a) the initial treatment participants at 24 months after their ESG, and (b) the control cross-over
participants evaluated at twelve months after their ESG.
During 2017, we entered into a Registry Funding Agreement with the American Gastroenterological Association ("AGA") Center for GI Innovation and
Technology to develop and administer a registry (the “AGA Registry”) to evaluate flexible endoscopic procedures enabled by the OverStitch Endoscopic Suturing
System. The AGA Registry collects real-world evidence related to the safety and efficacy of a number of flexible endoscopic suturing-enabled procedures,
including the revisions of patients after weight regain subsequent to an initial bariatric surgery; the fixation of esophageal stents to prevent migration; and data on
other suturing procedures currently in practice. The resulting data will be used to present the benefits of endoscopic suturing procedures relative to traditional
therapies. We expect the AGA to collect data for four years with interim reporting expected.
During 2018, in Europe we established a multi-center, longitudinal data repository for ESG and Gastrojejunal Anastomotic outlet revision procedures that will
extend up to two years. This registry will collect both country specific and pan-European outcomes related to safety and effectiveness of procedures performed
and will support informed decision-making throughout Europe. In addition, a second, multi-center, retrospective data repository for gastrointestinal applications
performed using the OverStitch System was also created. The objective of this registry is to collect European demographic, procedural and outcome data using
OverStitch for a variety of procedures including closure of full thickness and mucosal defects, post-operative leaks, perforations, stent fixation, treatment of
gastrointestinal bleeding and other procedures. The goal is to support the clinical use and benefits of endolumenal suturing as well as provide real-world data on
safety and effectiveness which can support physicians, patients and payers in making informed decisions. This registry could extend up to five years and both
registries will provide interim reporting.
Additional applications for endoscopic suturing are emerging as physicians gain suturing proficiency and identify additional patient needs. In June 2018,
Endoscopy International published for example a study of a novel resection and plication anti-reflux procedure ("RAP") using OverStitch. In this patient series,
RAP was performed on 10 patients with gastroesophageal reflex disease ("GERD") and on long-term proton pump inhibitor ("PPI") therapy. All the patients
underwent RAP without adverse events and were discharged on the same day. Follow-up ranged from 5 to 24 months, with the median being 9 months, and all
patients were reported as having significant improvement in their GERD based quality of life scores, and 8 of the 10 patients had eliminated their daily PPI use.
Orbera Intragastric Balloon System
The intragastric balloon system ("IGB", the "Orbera System" or "Orbera") is currently marketed under three brands: the Orbera Intragastric Balloon System, the
BIB, and the Orbera365 Managed Weight Loss System ("Orbera365") and are non-surgical alternatives for the treatment of overweight and obese adults. Orbera
is the global market leader among intragastric balloons and is available in over 70 countries with more than 300,000 units distributed in the period from January
1, 2006 to March 31, 2018. The IGB brands each include a single silicone balloon that is filled with saline after its endoscopic transoral placement into the
patient's stomach. Once in the patient's stomach, the balloon serves to reduce stomach capacity, causing patients to consume less following the procedure, and
delay gastric emptying, the primary mechanisms of action in assisting the patient in losing weight. Placement of the balloon is temporary and is removed
endoscopically, typically, under conscious sedation.
In the U.S., Orbera is indicated for an indwell period of up to six months for adults within a BMI range of 30 to 40 who have tried other weight loss programs,
such as supervised diet and exercise, but who were unable to lose weight and keep it off. Outside the U.S., Orbera is generally indicated for temporary weight
loss for patients with a BMI greater than or equal to 27, and depending on the specific label, is indicated for an indwell time of six or twelve months. In some
cases, generally higher BMI patients, Orbera is indicated for use prior to surgery, including obesity surgery, in order to reduce surgical risk.
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Today, IGBs are most often used for aesthetic weight loss purposes rather than to specifically treat a patient's advancing comorbidity related with obesity.
Because of this, the IGB procedure is typically not covered by insurance and is paid for out of pocket by the patient.
However, specific to Orbera, there is a substantial and increasing body of evidence that shows that the level of weight loss with Orbera is very effective in the
treatment of comorbidities associated with being overweight or obese. The clinical effectiveness and safety profile of the Orbera System as a non-ulcerogenic
weight loss device has been reported in over 250 peer reviewed publications. Although not specifically indicated for the treatment of obesity-related
comorbidities, studies have consistently reported resolution or improvement in a patient's pre-existing comorbidities at the time of Orbera removal. Orbera is
currently the only balloon or other endoscopic product that has been recognized in the ASGE Preservation and Incorporation of Valuable Endoscopic
Innovations assessment to have met its threshold standards for the treatment of obesity. The meta-analysis performed by the ASGE was based on the
aggregation of certain clinical studies conducted outside the U.S. and reported an estimated TBWL at six months of approximately 13.2%.
For example in June 2018 during Digestive Disease Week, physicians from Mayo Clinic presented on their prospective open-label FDA-approved study of
Orbera patients with non-alcoholic steatohepatitis ("NASH"). Of the patients treated, 65% achieved resolution of NASH on biopsy; 80% had at least a two point
improvement in their non-alcoholic fatty liver disease activity score; 15% had tissue evidence indicating regression of fibrosis (liver scarring). NASH is expected
to become the most common cause of liver cirrhosis by 2030, leading to increased risk of liver-related death and higher rates of malignancy.
Our commercial strategy is to further establish the medical relevancy of Orbera in areas of large medical need such as fatty liver disease and increase market
awareness of this relevancy.
The Orbera System was originally CE marked in May 1997. Orbera365 was CE marked in August 2017. After February 2019, only Orbera365 and BIB will be
CE marked.
Orbera was approved by the FDA in August 2015. From FDA approval through the end of 2018, we have trained more than 1,000 U.S. physicians on the use of
Orbera.
As part of the FDA approval of Orbera, we are required to conduct a post-approval clinical study. The Orbera Post-Approval Study is a prospective, multi-center,
open-label study of the safety and effectiveness of Orbera as an adjunct to weight reduction for obese adults (22 years of age and older) with a BMI of ≥ 30
kg/m2 and BMI ≤ 40 kg/m2. The Orbera Post Approval Study completed enrollment in September 2018 with 281 patients treated with the Orbera from 11 U.S.
clinical study sites. The endpoints include the patient's percentage of total body weight loss at 26 weeks and 12 months after balloon placement and the rate of
adverse events at 26 weeks. Patient follow up is expected to be completed in late 2019 and final study results are expected in early 2020.
In February 2017, the FDA issued a letter to health care providers related to adverse events following placement of liquid-filled balloons which were not seen
during the U.S. pivotal studies, specifically related to events of spontaneous balloon over-inflation and, separately, reports of acute pancreatitis. We
subsequently developed updates to Orbera's product labeling and physician training materials, and these were approved by FDA and implemented in June 2017.
The labeling changes included additions to the “Warnings” and “Possible Complications” sections and an update to the “Clinical Evaluations…” sub-section
within the “Adverse Events” history for Orbera.
In August 2017, the FDA issued a second update to alert health care providers of five reports of unanticipated deaths that occurred since 2016 in patients with a
liquid-filled intragastric balloon implant. Four of the deaths involved patients who had received an Orbera and had been self-reported by us to the FDA as part of
our normal product surveillance process. Following this letter, we interactively worked with the FDA to provide further updates regarding the risks of gastric and
esophageal perforation, aspiration, and death and updated the label disclosure for these adverse events as per the table below:
Global Rate (as of March 31, 2017)
Global Rate (as of March 31, 2018)
Mortality Rate
Gastric Perforation
Esophageal Perforation
Pancreatitis
Spontaneous Hyperinflation
0.01%
0.01%
<0.01%
<0.01%
0.04%
6
<0.01%
0.01%
<0.01%
<0.01%
0.07%
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In addition, The U.S. physician training material was updated to provide physicians with more detailed descriptions of the patient symptoms that may indicate
persistent (or refractory) intolerance, methods of assessing these patients, and recommendations for the management of symptoms and removal of the device.
In June 2018, the FDA approved the new Orbera labeling and concurrent with their approval issued a third update to alert health care providers of the label
updates and provide an update on new reports worldwide of unanticipated deaths that had been reported since their August 2017 letter to Health Care Providers.
Four of the reported deaths in this third update involved patients who had received our IGB product. In each case, the occurrence had been self-reported by us
to the FDA as part of our normal product surveillance process. As stated in the Orbera Directions For Use in the period from January 1, 2006 through March 31,
2017, there had been 21 reported deaths of patients while they had an Orbera which is an incident rate of less than 0.01% based on the more than 277,000
Orbera balloons distributed during that same time period. The FDA’s letter to Health Care Providers does not indicate that the patient deaths were related to the
Orbera device or the insertion procedures. While the cause of death has not been provided or determined in all cases, we have not received any communication
or indication from the attending physicians or hospitals that the reported deaths were caused by the Orbera device. In total, Apollo has reported five instances of
death involving patients who had received an Orbera since FDA approval in August 2015 with four of the incidents occurring outside the U.S.; the overall
incident rate of patient death remains less than 0.01% (one in 10,000).
In the U.S., we also introduced Orbera Coach, an on-demand telehealth program that provides professional nutritionist support to patients who undergo the
Orbera procedure for an annual fee.
Surgical
In December 2018, Apollo entered into an agreement with ReShape to divest its Surgical product line. As part of the agreement Apollo and ReShape entered
into a set of transition services agreements under which Apollo will continue to distribute the products in markets outside the U.S. for up to 12 months and will
continue to manufacture the Surgical product line for up to two years. Our Surgical products consisted of the Lap-Band System and accessories primarily used in
laparoscopic bariatric surgeries. The Lap-Band System is designed to provide minimally invasive long-term treatment of severe obesity and is an alternative to
more invasive surgical stapling procedures such as the gastric bypass or sleeve gastrectomy. The Lap-Band System is an adjustable silicone band that is
laparoscopically placed around the upper part of the stomach through a small incision, creating a small pouch at the top of the stomach, which slows the
passage of food and creates a sensation of fullness. The procedure can normally be performed as an outpatient procedure, where the patient is able to go home
the day of the procedure without the need for an overnight hospital stay.
The Lap-Band System has been in use in Europe since 1993 and was CE marked in 1997. FDA approval in the U.S. was obtained in 2001 and the Lap-Band
System has been approved in many countries around the world. Nearly 900,000 Lap-Band Systems have been distributed worldwide.
The Lap-Band System was approved for use in the U.S. for patients with BMI greater than or equal to 40 or a BMI greater than or equal to 35 with one or more
severe comorbid conditions. In 2011, the U.S. FDA granted approval for an expanded indication for the Lap-Band System to include patients with a BMI in the
range of 30 to 35 and with one or more comorbid conditions.
Competition
We face competition from other interventional therapies for the treatment of obesity that do not use our products as well as from other manufacturers with
similar products to ours with the same intended mode of action.
Competing therapies are primarily surgical in nature, such as sleeve gastrectomy and gastric bypass. Sleeve gastrectomy is a surgical weight-loss procedure in
which the stomach is reduced to about 15% of its original size, by the longitudinal resection and removal of a large portion of the stomach along the greater
curvature. The result is a sleeve or tube like structure. The procedure permanently reduces the size of the stomach. The procedure is generally performed
laparoscopically and is irreversible. Gastric bypass surgery refers to a surgical procedure in which the stomach is divided into a small upper pouch and a much
larger lower remnant pouch and then the small intestine is rerouted to connect to the small upper pouch. The procedure leads to a marked reduction in the
functional volume of the stomach, accompanied by an altered physiological and physical response to food. Both procedures are normally performed
laparoscopically and rely upon surgical staplers as their principal surgical tool. As a result, these procedures are supported by the suppliers of surgical staplers,
the largest of whom are Johnson & Johnson (Ethicon) and Medtronic (Covidien). Both companies have substantially more resources than we do.
We are the only manufacturer with a cleared device for full thickness endoscopic suturing currently on the market in the U.S. or outside the U.S. Competing
technologies for closure during certain GI defect applications are offered by large and established manufacturers in the GI space including Boston Scientific
Corporation, Olympus Medical, Steris (US Endoscopy) and Cook Medical. Outside the U.S., there are a variety of local and regional competitive intragastric
balloon manufacturers
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including SC MedSil, Medicone, Allurion Technologies and Spatz Laboratories. In the U.S., there is one other manufacturer with an intragastric balloon approved
by the FDA at this time, Obalon Therapeutics, Inc.
Sales and Distribution
We currently market and sell our products principally to providers of medical services and procedures including hospitals, outpatient surgical centers, clinics and
physicians through an employee sales force in the U.S., Brazil, Australia and certain countries in Europe. As of December 31, 2018, we employed 46 sales and
marketing personnel in the U.S. and another 41 employees in all of the markets outside of the U.S. In addition, we sell products to third party distributors who
sell our products in approximately 65 other countries.
Obesity procedures that utilize our Endo-bariatric products are generally cash pay procedures. Revisions of prior bariatric surgery using endoscopic suturing
have received reimbursement approval on a case-by-case basis. Medical procedures that utilize endoscopic suturing products in the treatment of GI defects
generally receive reimbursement approval, but coverage can vary by country, state and procedure performed.
Manufacturing and Product Supply
We manage all aspects of product supply through our operations team based in Austin, Texas. We operate a manufacturing facility in the Coyol Free Trade
Zone in Alajuela, Costa Rica that initially performed final assembly for the Lap-Band and Orbera products. Beginning in 2016, we started to produce components
related to the OverStitch system at this facility and have expanded the number and volume of OverStitch system products and components produced in Costa
Rica since then and will continue to increase production in the coming year. In addition, we rely on several third-party suppliers to provide components used in
existing products and we expect to continue to do so, including final assembly of the OverStitch and OverStitch Sx endoscopic suturing system.
In December 2018, Apollo and ReShape Lifesciences, Inc., entered into a set of transition services agreements under which we will continue to manufacture the
Surgical product line for ReShape for up to two years and would continue distributing products in markets outside the U.S. for up to 12 months, and other
specified services as part of the Purchase Agreement.
We believe that our existing manufacturing facilities give us the necessary physical capacity to produce sufficient quantities of products to meet anticipated
demand for at least the next twelve months. Our manufacturing facility is certified by the International Organization for Standardization, or ISO, and operates
under the FDA's good manufacturing practice requirements for medical devices set forth in the Quality System Regulation, ("QSR").
Intellectual Property
We have developed and acquired significant know-how and proprietary technology, upon which our business depends. To protect our know-how and proprietary
technology, we rely on trade secret laws, patents, copyrights, trademarks and confidentiality agreements and contracts. However, these methods afford only
limited protection. Others may independently develop substantially equivalent proprietary information or technology, gain access to our trade secrets or disclose
or use such secrets or technology without our approval.
We protect trade secrets and proprietary knowledge in part through confidentiality agreements with employees, consultants and other parties. We cannot assure
you that our trade secrets will not become known to or be independently developed by our competitors.
Apart from the portfolio of patents and applications to the Lpath technology, we own over 97 U.S. patents and 115 foreign patents. Our U.S. patents have
expiration dates ranging from 2019 to 2035 and our foreign patents have expiration dates ranging from 2020 to 2034 subject to the payment of the requisite
renewal fees. We also own 40 pending U.S. patent applications and 58 pending foreign patent applications. We believe patents will be issued pursuant to such
applications but cannot guarantee it. Moreover, neither the timing of any issuance, the scope of protection, nor the actual issue date of these pending
applications can be forecasted with precision. Where we have acquired or licensed patent rights from third parties, we are generally required to pay royalties.
While our patents are an important element of our products and future product development, our business as a whole is not significantly dependent on any one
patent.
Our patents may not provide us with effective competitive advantages. Our pending or future patent applications may not be issued. Others may hold or obtain
patents that cover aspects or uses of our innovations. The patents of others may render our patents obsolete, limit our ability to patent or practice our
innovations, or otherwise have an adverse effect on the ability to conduct business. Because foreign patents may afford less protection than U.S. patents, they
may not adequately protect our technology in markets outside the U.S.
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In 2009, we entered into an Intellectual Property Assignment Agreement, with Olympus Corporation and the "FTE Group" comprised of The Johns Hopkins
University, Mayo Foundation for Medical Education and Research, The University of Texas Medical Branch, MUSC Foundation for Research Development and
the Chinese University of Hong Kong, whereby the FTE Group has assigned to us a Joint Research Agreement with Olympus Corporation, including their rights
in certain inventions, patents and IP rights developed by FTE Group under the Joint Research Agreement, which relate to the field of flexible endoscopy and
minimally invasive surgery. Olympus Corporation has retained rights as a joint owner of certain inventions and related patents developed jointly by FTE Group
and Olympus Corporation under the Joint Research Agreement and retained a license granted by FTE Group to Olympus Corporation to the inventions and
related patents developed by FTE Group under the Joint Research Agreement. The patents covered by the agreement pertain to endoscopic procedures and
endoscopic suturing devices that relate to the OverStitch products and may also be incorporated into potential new products that we may develop in the future.
As consideration for the assignment, we are obligated to pay to each of Olympus and the FTE Group one half of a royalty in the low single digits on net sales of
our products covered by the patents, which royalty shall be reduced if related patents have expired or no longer exist. In addition, we have the right to sublicense
our rights under the Joint Research Agreement to the patents and technologies. The term of the Intellectual Property Assignment Agreement is through and until
termination. The agreement may be terminated upon written notice a) by Olympus if we materially breach any material terms that pertain to Olympus and the
breach is not cured within 30 days after notice, b) by the FTE Group if we materially breach any of the material terms that pertain to the FTE Group and the
breach is not cured within 30 days after notice or c) by us if Olympus materially breaches any material terms that pertain to Olympus and the breach is not cured
within 30 days after notice.
Following the Merger, we also own 47 U.S. and foreign issued patents and 29 pending U.S. and foreign patent applications relating to technologies and
inventions developed by Lpath prior to the Merger (the “Lpath IP”). The Lpath IP is not aligned with our current business activities. In January 2018, we entered
into a royalty-bearing License Agreement with Echelon Biosciences, Inc., ("Echelon") under which Echelon may manufacture and sell certain antibody products
covered by the Lpath IP for non-clinical research use only, clinical diagnostics and immunohistochemistry. In January 2018 we also entered into a Technology
Transfer Agreement with Resolute Pharma, Inc. (“Resolute”) whereby we transferred certain scientific and research materials to Resolute and granted Resolute
a license to certain patent rights related to the Lpath IP. Under the terms of the agreement with Resolute, Resolute has obligations to develop and commercialize
licensed products and we maintain rights to terminate the agreement if certain development and commercialization milestones are not met. Under the
agreement, Resolute is responsible to pay for any ongoing costs and fees associated with the Lpath IP, and we are entitled to a royalty for any revenues related
to the Lpath IP including sales of licensed products, and a Tech Transfer Fee of $0.5 million by July 31, 2019 which increases to $0.75 million if paid after this
date. In addition, Resolute has a certain buyout option for the Licensed Patents or Licensed Products.
Government Regulation
The healthcare industry, and thus our business, is subject to extensive federal, state, local and foreign regulation. Some of the pertinent laws have not been
definitively interpreted by the regulatory authorities or the courts, and their provisions are open to a variety of interpretations. In addition, these laws and their
interpretations are subject to change.
Unless an exemption applies, each new or significantly modified medical device we seek to commercially distribute in the U.S. will require either a premarket
notification to the FDA requesting permission for commercial distribution under Section 510(k) of the Federal Food, Drug, and Cosmetic Act, (or "FD&C Act") also
referred to as a 510(k) clearance, or approval from the FDA of a premarket approval ("PMA") application. Both the 510(k) clearance and PMA processes can be
resource intensive, expensive and lengthy, and require payment of significant user fees, unless an exemption is available.
Device Classification
Under the FD&C Act, medical devices are classified into one of three classes - Class I, Class II or Class III-depending on the degree of risk associated with
each medical device and the extent of control needed to provide reasonable assurances with respect to safety and effectiveness.
Class I devices are those for which safety and effectiveness can be reasonably assured by adherence to a set of regulations, referred to as General Controls,
which require compliance with the applicable portions of the QSR, facility registration and product listing, reporting of adverse events and malfunctions and
appropriate, truthful and non-misleading labeling and promotional materials. Some Class I devices, also called Class I reserved devices, also require premarket
clearance by the FDA through the 510(k) premarket notification process described below. Most Class I products are exempt from the premarket notification
requirements.
Class II devices are those that are subject to the General Controls, as well as Special Controls, which can include performance standards, guidelines and
postmarket surveillance. Most Class II devices are subject to premarket review and clearance by the FDA. Premarket review and clearance by the FDA for
Class II devices is accomplished through the 510(k)
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premarket notification process. Under the 510(k) process, the manufacturer must submit to the FDA a premarket notification, demonstrating that the device is
"substantially equivalent," as defined in the statute, to either:
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a device that was legally marketed prior to May 28, 1976, the date upon which the Medical Device Amendments of 1976 were enacted, or
another commercially available, similar device that was cleared through the 510(k) process.
To be "substantially equivalent," the proposed device must have the same intended use as the predicate device, and either have the same technological
characteristics as the predicate device or have different technological characteristics and not raise different questions of safety or effectiveness than the
predicate device. Clinical data are sometimes required to support substantial equivalence.
After a 510(k) notice is submitted, the FDA determines whether to accept it for substantive review. If it lacks necessary information for substantive review, the
FDA will refuse to accept the 510(k) notification. If it is accepted for filing, the FDA begins a substantive review. By statute, the FDA is required to complete its
review of a 510(k) notification within 90 days of receiving the 510(k) notification. As a practical matter, clearance often takes longer, and clearance is never
assured.
Although many 510(k) premarket notifications are cleared without clinical data, the FDA may require further information, including clinical data, to make a
determination regarding substantial equivalence, which may significantly prolong the review process. If the FDA agrees that the device is substantially
equivalent, it will grant clearance to commercially market the device.
After a device receives 510(k) clearance, any modification, including modification to or deviation from design, manufacturing processes, materials, packaging
and sterilization that could significantly affect its safety or effectiveness, or that would constitute a new or major change in its intended use, may require a new
510(k) clearance or, depending on the modification, could require a PMA application. The FDA requires each manufacturer to make this determination initially,
but the FDA can review any such decision and can disagree with a manufacturer's determination. If the FDA requires a new 510(k) clearance or approval of a
PMA application for any modifications to a previously cleared product, the applicant may be required to cease marketing or recall the modified device until
clearance or approval is received. In addition, in these circumstances, the FDA can impose significant regulatory fines or penalties for failure to submit the
requisite 510(k) or PMA application(s).
If the FDA determines that the device is not "substantially equivalent" to a predicate device, or if the device is automatically classified into Class III, the device
sponsor must then fulfill the much more rigorous premarketing requirements of the PMA approval process, or seek reclassification of the device through the de
novo process. Pursuant to amendments to the statute in 2012, a manufacturer can also submit a petition for direct de novo review if the manufacturer is unable
to identify an appropriate predicate device and the new device or new use of the device presents a moderate or low risk.
Class III devices include devices deemed by the FDA to pose the greatest risk such as life-supporting or life-sustaining devices, or implantable devices, in
addition to those deemed novel and not substantially equivalent following the 510(k) process. The safety and effectiveness of Class III devices cannot be
reasonably assured solely by the General Controls and Special Controls described above. Therefore, these devices are subject to the PMA application process,
which is generally more costly and time consuming than the 510(k) process. Through the PMA application process, the applicant must submit data and
information demonstrating reasonable assurance of the safety and effectiveness of the device for its intended use to the FDA's satisfaction. Accordingly, a PMA
application typically includes, but is not limited to, extensive technical information regarding device design and development, pre-clinical and clinical trial data,
manufacturing information, labeling and financial disclosure information for the clinical investigators in device studies. The PMA application must provide valid
scientific evidence that demonstrates to the FDA's satisfaction a reasonable assurance of the safety and effectiveness of the device for its intended use.
The Orbera intragastric balloons are Class III devices. The OverStitch device is a Class II device. We also sell accessory products, some of which are Class I.
The Investigational Device Process
In the U.S., absent certain limited exceptions, human clinical trials intended to support medical device clearance or approval require an Investigational Device
Exemption ("IDE") application. Some types of studies deemed to present "non-significant risk" are deemed to have an approved IDE once certain requirements
are addressed and IRB approval is obtained. If the device presents a "significant risk" to human health, as defined by the FDA, the sponsor must submit an IDE
application to the FDA and obtain IDE approval prior to commencing the human clinical trials. The IDE application must be supported by appropriate data, such
as animal and laboratory testing results, showing that it is safe to test the device in humans and that the testing protocol is scientifically sound. The IDE
application must be approved in advance by the FDA for a specified number of subjects. Generally, clinical trials for a significant risk device may begin once the
IDE application is approved by the FDA and the study protocol and informed consent are approved by appropriate institutional review boards at the clinical trial
sites. There
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can be no assurance that submission of an IDE will result in the ability to commence clinical trials, and although the FDA's approval of an IDE allows clinical
testing to go forward for a specified number of subjects, it does not bind the FDA to accept the results of the trial as sufficient to prove the product's safety and
efficacy, even if the trial meets its intended success criteria.
All clinical trials must be conducted in accordance with the FDA's IDE regulations that govern investigational device labeling, prohibit promotion and specify an
array of recordkeeping, reporting and monitoring responsibilities of study sponsors and study investigators. Clinical trials must further comply with the FDA's
regulations for institutional review board approval and for informed consent and other human subject protections. Required records and reports are subject to
inspection by the FDA. The results of clinical testing may be unfavorable, or, even if the intended safety and efficacy success criteria are achieved, may not be
considered sufficient for the FDA to grant marketing approval or clearance of a product. The commencement or completion of any clinical trial may be delayed
or halted, or be inadequate to support approval of a PMA application or clearance of a 510(k), for numerous reasons, including, but not limited to, the following:
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the FDA or other regulatory authorities do not approve a clinical trial protocol or a clinical trial, or place a clinical trial on hold;
patients do not enroll in clinical trials at the rate expected;
patients do not comply with trial protocols;
patient follow-up is not at the rate expected;
patients experience adverse events;
patients die during a clinical trial, even though their death may not be related to the products that are part of the trial;
device malfunctions occur with unexpected frequency or potential adverse consequences;
side effects or device malfunctions of similar products already in the market that change the FDA's view toward approval of new or similar PMAs
or clearance of a 510(k) or result in the imposition of new requirements or testing;
institutional review boards and third-party clinical investigators may delay or reject the trial protocol;
third-party clinical investigators decline to participate in a trial or do not perform a trial on the anticipated schedule or consistent with the clinical
trial protocol, investigator agreement, investigational plan, good clinical practices, the IDE regulations or other FDA or IRB requirements;
third-party investigators are disqualified by the FDA;
data collection, monitoring and analysis is not performed in a timely or accurate manner or consistent with the clinical trial protocol or
investigational or statistical plans, or otherwise fail to comply with the IDE regulations governing responsibilities, records and reports of sponsors
of clinical investigations;
third-party clinical investigators have significant financial interests related to us or our study such that the FDA deems the study results
unreliable, or the company or investigators fail to disclose such interests;
regulatory inspections of our clinical trials or manufacturing facilities, which may, among other things, require us to undertake corrective action or
suspend or terminate our clinical trials;
changes in government regulations or administrative actions;
the interim or final results of the clinical trial are inconclusive or unfavorable as to safety or efficacy; or
the FDA concludes that our trial design is unreliable or inadequate to demonstrate safety and efficacy.
The PMA Approval Process
Following receipt of a PMA application, the FDA conducts an administrative review to determine whether the application is sufficiently complete to permit a
substantive review. If it is not, the agency will refuse to file the PMA. If it is, the FDA will accept the application for filing and begin the review. The FDA, by
statute and by regulation, has 180 days to review a filed PMA application, although the review of an application more often occurs over a significantly longer
period of time. During this review period, the FDA may request additional information or clarification of information already provided, and the FDA may issue a
major deficiency letter to the applicant, requesting the applicant's response to deficiencies communicated by the
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FDA. The FDA considers a PMA or PMA supplement to have been voluntarily withdrawn if an applicant fails to respond to an FDA request for information (e.g.,
major deficiency letter) within a total of 360 days. Before approving or denying a PMA, an FDA advisory committee may review the PMA at a public meeting and
provide the FDA with the committee's recommendation on whether the FDA should approve the submission, approve it with specific conditions, or not approve
it. Prior to approval of a PMA, the FDA may conduct a bioresearch monitoring inspection of the clinical trial data and clinical trial sites, and a QSR inspection of
the manufacturing facility and processes. Overall, the FDA review of a PMA application is to take 180 days, although the review generally takes between one and
three years, or longer. The FDA can delay, limit or deny approval of a PMA application for many reasons, including:
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the device may not be shown safe or effective to the FDA's satisfaction;
the data from pre-clinical studies and/or clinical trials may be found unreliable or insufficient to support approval;
the manufacturing process or facilities may not meet applicable requirements; and
changes in FDA approval policies or adoption of new regulations may require additional data.
If the FDA evaluation of a PMA is favorable, the FDA will issue either an approval letter, or an approvable letter, the latter of which usually contains a number of
conditions that must be met in order to secure final approval of the PMA. When and if those conditions have been fulfilled to the satisfaction of the FDA, the
agency will issue a PMA approval letter authorizing commercial marketing of the device, subject to the conditions of approval and the limitations established in
the approval letter. If the FDA's evaluation of a PMA application or manufacturing facilities is not favorable, the FDA will deny approval of the PMA or issue a not
approvable letter. The FDA also may determine that additional tests or clinical trials are necessary, in which case the PMA approval may be delayed for several
months or years while the trials are conducted and data are submitted in an amendment to the PMA, or the PMA is withdrawn and resubmitted when the data
are available. The PMA process can be expensive, uncertain and lengthy and a number of devices for which FDA approval has been sought by other companies
have never been approved by the FDA for marketing.
New PMA applications or PMA supplements may be required for modification to the manufacturing process, equipment or facility, quality control procedures,
sterilization, packaging, expiration date, labeling, device specifications, components, materials or design of a device that has been approved through the PMA
process. PMA supplements often require submission of the same type of information as an initial PMA application, except that the supplement is limited to
information needed to support any changes from the device covered by the approved PMA application and may or may not require as extensive technical or
clinical data or the convening of an advisory panel, depending on the nature of the proposed change.
In approving a PMA application, as a condition of approval, the FDA may also require some form of postmarket studies or postmarket surveillance, whereby the
applicant follows certain patient groups for a number of years and makes periodic reports to the FDA on the clinical status of those patients when necessary to
protect the public health or to provide additional or longer term safety and effectiveness data for the device. The FDA may require postmarket surveillance for
certain devices approved under a PMA or cleared under a 510(k) notification, such as implants or life-supporting or life-sustaining devices used outside a device
user facility, devices where the failure of which would be reasonably likely to have serious adverse health consequences, or devices expected to have significant
use in pediatric populations. The FDA may also approve a PMA application with other post-approval conditions intended to ensure the safety and effectiveness
of the device, such as, among other things, restrictions on labeling, promotion, sale, distribution and use.
Pervasive and Continuing FDA Regulation
After the FDA permits a device to enter commercial distribution, numerous regulatory requirements continue to apply. These include:
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the FDA's QSR, which requires manufacturers, including third party manufacturers, to follow stringent design, testing, production, control,
supplier/contractor selection, complaint handling, documentation and other quality assurance procedures during all aspects of the manufacturing
process;
labeling regulations, unique device identification requirements and FDA prohibitions against the promotion of products for uncleared, unapproved
or off-label uses;
advertising and promotion requirements;
restrictions on sale, distribution or use of a device;
PMA annual reporting requirements;
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•
PMA approval or clearance of a 510(k) for product modifications;
• medical device reporting ("MDR"), regulations, which require that manufacturers report to the FDA if their device may have caused or
contributed to a death or serious injury or malfunctioned in a way that would likely cause or contribute to a death or serious injury if the
malfunction were to recur;
• medical device correction and removal reporting regulations, which require that manufacturers report to the FDA field corrections and product
recalls or removals if undertaken to reduce a risk to health posed by the device or to remedy a violation of the U.S. Federal Food, Drug and
Cosmetic Act that may present a risk to health;
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recall requirements, including a mandatory recall if there is a reasonable probability that the device would cause serious adverse health
consequences or death;
device tracking requirements; and
post-market surveillance regulations, which apply when necessary to protect the public health or to provide additional safety and effectiveness
data for the device.
We have registered with the FDA as a medical device manufacturer and have obtained authorization to manufacture from the FDA. The FDA has broad post-
market and regulatory enforcement powers. We are subject to unannounced inspections by the FDA Office of Compliance within the Center for Devices and
Radiological Health to determine our compliance with the QSR and other applicable regulations, and these inspections may include the manufacturing facilities of
our suppliers.
Fraud and Abuse Laws
Our business is regulated by laws pertaining to healthcare fraud and abuse including anti-kickback laws and false claims laws. Violations of these laws are
punishable by significant criminal and civil sanctions, including, in some instances, exclusion from participation in federal and state healthcare programs, such as
Medicare and Medicaid. Because of the far-reaching nature of these laws, we may be required to alter one or more of our practices to remain in compliance with
these laws. Evolving interpretations of current laws, or the adoption of new laws or regulations, could adversely affect arrangements with customers and
physicians. In addition, any violation of these laws or regulations could have a material adverse effect on the financial condition and results of our operations.
Anti-Kickback Statute
Subject to a number of statutory exceptions, the federal Anti-Kickback Statute prohibits persons from knowingly and willfully soliciting, offering, receiving or
paying remuneration, directly or indirectly, in cash or in kind, in exchange for or to induce either the referral of an individual for, or the furnishing, recommending,
purchasing, leasing, ordering, or arranging for, a good or service for which payment may be made under a federal healthcare program such as Medicare and
Medicaid. The term "remuneration" has been broadly interpreted to include anything of value, including payments to physicians or other providers, gifts,
discounts, the furnishing of supplies or equipment, credit arrangements, waiver of payments and providing anything of value at less than fair market value. The
Office of the Inspector General ("OIG") of the U.S. Department of Health and Human Services and the U.S. Department of Justice ("DOJ") are responsible for
enforcing the federal Anti-Kickback Statute and the OIG is primarily responsible for identifying fraud and abuse activities affecting government healthcare
programs.
Penalties for violating the federal Anti-Kickback Statute include substantial criminal fines and/or imprisonment, substantial civil fines and possible exclusion from
participation in federal healthcare programs such as Medicare and Medicaid. Many states have adopted prohibitions similar to the federal Anti-Kickback Statute,
some of which apply to the referral of patients for healthcare services reimbursed by any source, not only by government healthcare programs such as the
Medicare and Medicaid programs and do not include comparable exceptions to those provided by the federal Anti-Kickback Statute.
The OIG has issued safe harbor regulations that identify activities and business relationships that are not treated as offenses under the federal Anti-Kickback
Statute. These safe harbors exist for various types of arrangements, including certain investment interests, leases, personal service arrangements, discounts and
management contracts. The failure of a particular activity to comply with all requirements of an applicable safe harbor regulation does not mean that the activity
violates the federal Anti-Kickback Statute or that prosecution will be pursued. However, activities and business arrangements that do not fully satisfy each
applicable safe harbor may result in increased scrutiny by government enforcement authorities such as the OIG.
In recent years, the federal government and several states have enacted legislation requiring biotechnology, pharmaceutical and medical device companies to
establish marketing compliance programs and file periodic reports on sales, marketing and other activities. Similar legislation is being considered in other states.
Many of these requirements are new and uncertain, and
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available guidance is limited. We could face enforcement action, fines and other penalties and could receive adverse publicity, all of which could harm our
business, if it is alleged that we have failed to fully comply with such laws and regulations. Similarly, if the physicians or other providers or entities that we do
business with are found to have not complied with applicable laws, they may be subject to sanctions, which could also have a negative impact on our business.
Federal False Claims Act
The federal False Claims Act ("FCA") prohibits knowingly filing or causing the filing of a false claim or the knowing use of false statements to obtain payment
from the federal government. A claim that is filed pursuant to an unlawful kickback may be a false claim under this law and, in a number of cases, manufacturers
of medical products have entered into settlements based on FCA allegations that their financial relationships with customers "caused" these customers to submit
false claims. When an entity is determined to have violated the FCA, it may be required to pay up to three times the actual damages sustained by the
government, plus mandatory civil penalties for each separate false claim. Private individuals can file suits under the FCA on behalf of the government. These
lawsuits are known as "qui tam" actions, and the individuals bringing such suits, sometimes known as "relators" or, more commonly, "whistleblowers," may share
in any amounts paid by the entity to the government in fines or settlement. Since complaints related to “qui tam” actions are initially filed under seal, the action
may be pending for some time before a defendant is even aware of such action. Thus, we may currently be subject to an investigation for alleged FCA violations
pursuant to one or more qui tam actions, which may be under full or partial seal, thereby preventing disclosure of such action or actions at this time. In addition,
certain states have enacted laws modeled after the federal FCA. Qui tam actions have increased significantly in recent years, causing greater numbers of
healthcare companies to have to defend a false claim action, pay fines or be excluded from Medicare, Medicaid or other federal or state healthcare programs as
a result of an investigation arising out of such action. The time and expense associated with responding to such investigations, and any related qui tam or other
actions, may be extensive, and we cannot predict the results of our review of the responsive documents and underlying facts or the results of such actions. The
costs of responding to government investigations, defending any claims raised, and any resulting fines, restitution, damages and penalties (including under the
FCA), settlement payments or administrative actions, as well as any related actions brought by stockholders or other third parties, could have a material impact
on our reputation, business and financial condition and divert the attention of our management from operating our business.
HIPAA
The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), created two new federal crimes: healthcare fraud and false statements relating to
healthcare matters. The healthcare fraud statute prohibits knowingly and willfully executing, or attempting to execute, a scheme to defraud any healthcare benefit
program, including private payers. A violation of this statute is a felony and may result in fines, imprisonment or exclusion from government-sponsored programs.
The false statements statute prohibits knowingly and willfully falsifying, concealing or covering up a material fact or making any materially false, fictitious or
fraudulent statement in connection with the delivery of or payment for healthcare benefits, items or services. A violation of this statute is a felony and may result
in fines or imprisonment.
HIPAA also protects the security and privacy of individually identifiable health information maintained or transmitted by healthcare providers, health plans and
healthcare clearinghouses and their business associates. HIPAA restricts the use and disclosure of patient health information, including patient records.
Although we believe that HIPAA does not apply directly to us, most of our customers have significant obligations under HIPAA, and we intend to cooperate with
customers and others to ensure compliance with HIPAA with respect to patient information. Failure to comply with HIPAA obligations can result in civil fines
and/or criminal penalties. Some states have also enacted rigorous laws or regulations protecting the security and privacy of patient information. If we fail to
comply with these laws and regulations, we could face additional sanctions.
Healthcare Reform and Compliance
In March 2010, the U.S. Congress enacted the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of
2010 ("ACA"). The law includes provisions that, among other things, reduce or limit Medicare reimbursement, require all individuals to have health insurance
(with limited exceptions) and impose increased taxes. Specifically, the law requires the medical device industry to subsidize healthcare reform in the form of a
medical device excise tax on U.S. sales of most medical devices beginning in 2013. We began paying the medical device excise tax in January 2013.
In December 2015, the Protecting Americans from Tax Hikes Act of 2015 was implemented, which suspended the medical device excise tax implemented as
part of the ACA for a two-year period through December 31, 2017. In January 2018, the moratorium on the medical device tax was extended an additional two
years, through the end of 2019.
The Physician Payments Sunshine Act ("PPSA"), which is part of the ACA, requires manufacturers of drugs, biologics, devices and medical supplies covered
under Medicare and Medicaid to record any transfers of value to physicians and teaching hospitals and to report this data to Centers for Medicare & Medicaid
Services, for subsequent public disclosure. Similar reporting requirements have also been enacted in several states, and an increasing number of countries
worldwide either have
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adopted or are considering similar laws requiring transparency of interactions with healthcare professionals. Particularly, some states such as Massachusetts
and Vermont impose an outright ban on certain gifts to physicians. Failure to report appropriate data may result in civil or criminal fines and/or penalties. We are
current with all required reports under the PPSA.
Additionally, the compliance environment is changing, with more states, such as California, Connecticut, Nevada and Massachusetts, mandating implementation
of compliance programs, compliance with industry ethics codes, and spending limits, and other states, such as Vermont, requiring reporting to state governments
of gifts, compensation and other remuneration to physicians. The shifting regulatory environment, along with the requirement to comply in multiple jurisdictions
with different compliance and reporting requirements, increases the possibility that a company may run afoul of one or more laws.
International Regulation
Our business is also subject to regulation in each of the foreign countries in which our products are sold. Many of the regulations applicable to our products in
these countries are similar to those of the FDA. The European Union ("EU") requires that medical devices comply with the Medical Device Directive or the Active
Implantable Medical Device Directive, which includes quality system and CE certification requirements. To obtain a CE Mark in the EU, defined products must
meet minimum standards of safety and quality (i.e., the essential requirements) and then undergo an appropriate conformity assessment procedure. A Notified
Body assesses the quality management systems of the manufacturer and verifies the conformity of devices to the essential and other requirements within the
Medical Device Directive. In the EU, we are also required to maintain certain ISO certifications in order to sell products. We are also subject to regulations and
periodic review from various regulatory bodies in other countries where our products are sold. Lack of regulatory compliance in any of these jurisdictions could
limit our ability to distribute products in these countries. We are also subject to foreign laws and regulations governing the marketing and promotion of our
products including transparency reporting obligations.
Foreign Corrupt Practices Act
The U.S. Foreign Corrupt Practices Act ("FCPA") and similar worldwide anti-bribery laws in non-U.S. jurisdictions generally prohibit companies and their
intermediaries from making improper payments to foreign government officials for the purpose of obtaining or retaining business. Many of our customer
relationships outside of the U.S. are, either directly or indirectly, with governmental entities and employees (such as physicians at state-owned or state-operated
hospitals) and are therefore subject to various anti-bribery laws. Although our corporate policies mandate compliance with these anti-bribery laws, we sell to
customers in many parts of the world that have experienced governmental corruption to some degree, and in certain circumstances strict compliance with anti-
bribery laws may conflict with local customs and practices. Our policies and procedures are designed to both prevent as well as detect reckless or criminal acts
committed by employees, distributors, consultants, or agents, but such controls, policies, and procedures may not always protect us from violations. Violations of
these laws, or allegations of such violations, could disrupt our business and result in a material adverse effect on our business, results of operations and financial
condition.
Other Regulations
We are also subject to various international, federal, state and local laws and regulations relating to such matters as safe working conditions, laboratory and
manufacturing practices and the use, handling and disposal of hazardous or potentially hazardous substances used in connection with our research and
development and manufacturing activities. Specifically, the manufacture of our products is subject to compliance with various international and federal laws and
regulations and by various foreign, state and local agencies. Although we believe we are in compliance with these laws and regulations in all material respects,
we cannot provide assurance that we will not be required to incur significant costs to comply with these and other laws or regulations in the future.
Employees
As of December 31, 2018, we had a total of 215 full-time employees. None of our U.S. employees are represented by a labor union or subject to a collective
bargaining agreement. Our non-U.S. employment contracts comply with the applicable country mandated collective agreement in the locations where we
operate. We have never experienced any work stoppage and consider our relations with our employees to be good.
Available Information
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We file or furnish pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, as applicable, our Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, amendments to those reports, proxy statements and other information electronically with the
SEC. Through a link on our website, we make copies of our periodic and current reports, amendments to those reports, proxy statements and other information
available, free of charge, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Information found on, or
accessible through, our website is not part of, and is not incorporated into, this Annual Report on Form 10-K.
ITEM 1A. RISK FACTORS
We have identified the following additional risks and uncertainties that may have a material adverse effect on our business, financial condition or results of
operations. Investors should carefully consider the risks described below before making an investment decision. Our business faces significant risks and the
risks described below may not be the only risks we face. Additional risks not presently known to us or that we currently believe are immaterial may also
significantly impair our business operations. If any of these risks occur, our business, results of operations or financial condition could suffer, the market price of
our common stock could decline and you could lose all or part of your investment in our common stock.
Risks Related to Our Business
We have incurred significant operating losses since inception and may not be able to achieve profitability.
We have incurred net losses since our inception in 2005. For the years ended December 31, 2018 and 2017, we had net losses of $45.8 million and
$27.3 million, respectively. As of December 31, 2018, we had an accumulated deficit of $222.8 million. To date, we have funded our operations primarily through
equity offerings, the issuance of debt instruments, and from sales of our products. We have devoted substantially all of our resources to the acquisition of
products, the research and development of products, sales and marketing activities and clinical and regulatory initiatives to obtain approvals for our products. Our
ability to generate sufficient revenue from our existing products, and to transition to profitability and generate consistent positive cash flows is uncertain. We may
need to raise additional funds in the future, and such funds may not be available on a timely basis, or at all. We expect that our operating expenses may
increase as we continue to build our commercial infrastructure, develop, enhance and commercialize our products and incur additional costs associated with
being a public company. As a result, we may incur operating losses for the foreseeable future and may never achieve profitability.
Our long-term growth depends on our ability to successfully develop the therapeutic endoscopy market and successfully commercialize our Endo-
bariatric products.
It is important to our business that we continue to build a market for therapeutic endoscopy procedures within the bariatric and gastroenterology community. Our
Endo-bariatric products offer non-surgical and less-invasive solutions and technology that enable new options for physicians treating their patients who suffer
from obesity. However, this is a new market and developing this market is expensive and time-consuming and may not be successful due to a variety of factors
including lack of physician adoption, patient demand, or both. Even if we are successful in developing additional products in the Endo-bariatric market, the
success of any new product offering or enhancement to an existing product will depend on several factors, including our ability to:
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properly identify and anticipate physician and patient needs;
effectively train physicians on how to use our products and achieve good patient outcomes;
effectively communicate with patients and educate them on the benefits of Endo-bariatric procedures;
achieve procedure adoption in a timely manner;
develop clinical data that demonstrate the safety and efficacy of the procedures that use our products;
obtain the necessary regulatory clearances or approvals for new products or product enhancements;
• market new devices or modified products in compliance with the regulations of the FDA and other applicable regulatory authorities;
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receive adequate coverage and reimbursement for procedures performed with our products; and
train the sales and marketing team to effectively support our market development efforts.
We are dependent on the success of our Endo-bariatric products following the divestiture of our Surgical product line to ReShape, in December 2018. For the
year ended December 31, 2018, revenues from Surgical product sales comprised 31% of
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total revenues. While we intend to focus our commercial efforts on our Endo-bariatric products, there can be no assurance that such product lines will be
profitable in the future.
If we are unsuccessful in developing and commercializing the therapeutic endoscopy market, our ability to increase our revenue will be impaired and our
business, results of operations, financial condition and prospects will be materially adversely affected.
Adverse U.S. and international economic conditions may reduce consumer demand for our products, causing our sales and profitability to suffer.
Adverse economic conditions in the U.S. and international markets may negatively affect our revenues and operating results. Our Endo-bariatric products, such
as the Intragastric Balloon products, have limited reimbursement, and in most cases are not reimbursable by governmental or other health care plans and
instead are partially or wholly paid for directly by patients. Sales of our products may be negatively affected by adverse economic conditions impacting consumer
spending, including among others, increased taxation, higher unemployment, lower consumer confidence in the economy, higher consumer debt levels, lower
availability of consumer credit, higher interest rates and hardships relating to declines in the housing and stock markets which have historically caused
consumers to reassess their spending choices and reduce their likelihood to pursue elective surgical procedures. Any reduced consumer demand due to adverse
economic or market conditions could have a material adverse effect on our business, cause sales and profitability to suffer, reduce operating cash flow and result
in a decline in the price of our common stock. Adverse economic and market conditions could also have a negative impact on our business by negatively
affecting the parties with whom we do business, including among others, our business partners, creditors, third-party contractors and suppliers, causing them to
fail to meet their obligations to us.
Our future growth depends on physician adoption and recommendation of procedures utilizing our products.
Our ability to sell our products depends on the willingness of our physician customers to adopt our products and to recommend corresponding procedures to
their patients. Physicians may not adopt our products unless they determine that they have the necessary skills to use our products and based on their own
experience, clinical data, communications from regulatory authorities and published peer-reviewed research that our products provide a safe and effective
treatment option. Even if we are able to raise favorable awareness among physicians, physicians may be hesitant to change their medical treatment practices
and may be hesitant to recommend procedures that utilize our products for a variety of reasons, including:
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existing preferences for competitor products or with alternative medical procedures and a general reluctance to change to or use new products
or procedures;
lack of experience with our products;
time and skill commitment that may be necessary to gain familiarity with a new product or new treatment;
a perception that our products are unproven , unsafe, ineffective, experimental or too expensive;
reluctance for a related hospital or healthcare facility to approve the introduction of a new product or procedure;
a preference for an alternative procedure that may afford a physician or a related hospital or healthcare facility greater remuneration; and,
the development of new weight loss treatment options, including pharmacological treatments, that are less costly, less invasive, or more
effective.
Our future growth depends on patient awareness of and demand for procedures that use our products.
The procedures that utilize our products are generally elective in nature and demand for our products is driven significantly by patient awareness and preference
for the procedures that use our products. We provide patient education materials about our products and related procedures through various forms of media.
However, the general media, social media and other forms of media outside of our control as well as competing organizations may distribute information that
presents our products and related procedures as being unproven, unsafe, ineffective or experimental or otherwise is unfavorable to our products and related
procedures. If patient awareness and preference for procedures is not sufficient or is not positive, our future growth will be impaired. In addition, our future growth
will be impacted by the level of patient satisfaction achieved from procedures that use our products. If patients who undergo treatment using our product are not
satisfied with their results, our reputation and that of our products may suffer. Even if we are able to raise favorable awareness among patients, patients may be
hesitant to proceed with a medical treatment for various reasons including:
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perception that our products are unproven or experimental;
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reluctance to undergo a medical procedure;
reluctance of a prospective patient to commit to long -term lifestyle changes;
previous long-term failure with other weight loss programs;
out of pocket cost for an elective procedure; and
alternative weight loss treatments that are perceived to be more effective or less expensive.
We may not be able to successfully introduce new products to the market in a timely manner.
Our future financial performance will depend in part on our ability to develop and manufacture new products or to acquire new products in a cost-effective
manner, to introduce these products to the market on a timely basis and to achieve market acceptance of these products. Factors which may result in delays of
new product introductions include capital constraints, research and development delays, lack of personnel with sufficient experience or competence, delays in
acquiring regulatory approvals or clearances or delays in closing acquisition transactions. Future product introductions may fail to achieve expected levels of
market acceptance including physician adoption, patient awareness or both. Factors impacting the level of market acceptance include the timeliness of our
product introductions, the effectiveness of medical education efforts, the effectiveness of patient awareness and educational activities, successful product pricing
strategies, available financial and technological resources for product promotion and development, the ability to show clinical benefit from future products, the
scope of the indicated use for new products and the availability of coverage and reimbursement for procedures that use future products.
The misuse or off-label use of our products may harm our image in the marketplace, result in injuries that lead to product liability suits or result in
costly investigations and sanctions by regulatory bodies if we are deemed to have engaged in the promotion of these uses, any of which could be
costly to our business.
The products we currently market have been approved or cleared by the FDA for specific indications. We train our marketing and direct sales force to not
promote our products for uses outside of the FDA-approved or cleared indications for use, known as "off-label uses." We cannot, however, prevent a physician
from using our products off-label, when in the physician's independent professional medical judgment he or she deems it appropriate. There may be increased
risk of injury to patients if physicians attempt to use our products off-label. Furthermore, the use of our products for indications other than those approved or
cleared by the FDA or any foreign regulatory body may not effectively treat such conditions, which could harm our reputation in the marketplace among
physicians and patients.
Physicians may also misuse our products, use improper techniques, ignore or disregard information provided in training or fail to obtain adequate training,
potentially leading to injury and an increased risk of product liability. If our products are misused or used with improper technique, we may become subject to
costly litigation by our customers or their patients. Product liability claims could divert management's attention from our core business, be expensive to defend,
and result in sizable damage awards against us that may not be covered by insurance. In addition, if the FDA or any foreign regulatory body determines that our
promotional materials or training constitute promotion of an off-label use, it could request that we modify our training or promotional materials or we could be
subject to regulatory or enforcement actions, including the issuance of an untitled letter, a warning letter, injunction, seizure, civil fine or criminal penalties. It is
also possible that other federal, state or foreign enforcement authorities might take action if they consider our business activities to constitute promotion of an off-
label use, which could result in significant penalties, including, but not limited to, criminal, civil and administrative penalties, damages, fines, disgorgement,
exclusion from participation in government healthcare programs and the curtailment of our operations. Any of these events could significantly harm our business
and results of operations and cause our stock price to decline.
If we are unable to manage and maintain our direct sales and marketing organizations we may not be able to generate anticipated revenue.
Our operating results are directly dependent upon the sales and marketing efforts of our employees. If our direct sales representatives fail to adequately
promote, market and sell our products, our sales may suffer. In order to generate our anticipated sales, we will need to maintain a qualified and well-trained direct
sales organization. As a result, our future success will depend largely on our ability to hire, train, retain and motivate skilled sales managers and direct sales
representatives. Because of the competition for their services, we cannot assure you we will be able to hire and retain direct sales representatives on favorable
or commercially reasonable terms, if at all. Failure to hire or retain qualified sales representatives would prevent us from expanding our business and generating
sales. Additionally, new hires require training and take time before they achieve full productivity. If we fail to train new hires adequately, new hires may not
become as productive as may be necessary to maintain or increase our sales and we may not be able to effectively commercialize our products, which would
adversely affect our business, results of operations and financial condition.
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We are dependent on certain suppliers and manufacturers, and disruptions could materially adversely affect our business and future growth.
If the supply of materials from our suppliers were to be interrupted or if we experience delays or interruptions from our manufacturers, replacement or
alternative sources might not be readily obtainable. In particular, the products which together comprise our ESS products are sourced from a variety of suppliers
and manufacturers, and these suppliers and manufacturers further depend on many component providers. As ESS product sales increase, we have experienced
times of temporary supply disruption for a variety of reasons and this has caused delays in our fulfillment of customer orders. However, if such a condition were
to persist, our business could suffer as our reputation with customers could be damaged and eventually could lead to reduced future demand for our products.
An inability to continue to source materials or components from any of our suppliers or manufacturers could be due to reasons outside of our direct control, such
as regulatory actions or requirements affecting the supplier, adverse financial or other strategic developments experienced by a supplier or manufacturer, labor
disputes or shortages at the supplier and unexpected demands or quality issues.
Manufacturing of our products requires capital equipment and a well-trained workforce. The sourcing of new manufacturing or supply capacity can present
significant lead time. If demand increases faster than we expect, or if we are unable to produce the quantity of goods that we expect with our current suppliers
and manufacturers, we will not be able to adequately address demand for our products and our revenues and results of operations would suffer.
If we are required to replace a vendor, a new or supplemental filing with applicable regulatory authorities may be required before the product could be sold with
a material or component supplied by a new supplier or manufacturer. The regulatory approval process may take a substantial period of time and we cannot
assure investors that we would be able to obtain the necessary regulatory approval for a new material to be used in products on a timely basis, if at all. This
could create supply disruptions that would materially adversely affect our business. For example, in instances where we are changing our supplier of a key
component of a product, we will need to ensure that we have sufficient supply of the component while the change is reviewed by regulatory authorities.
We are dependent on warehouses and service providers in the U.S., Brazil, Australia and the Netherlands for product logistics, order fulfillment and distribution
support that are owned and operated by third parties. Our ability to supply products to our customers in a timely manner and at acceptable commercial terms
could be disrupted or continue to be disrupted by factors such as fire, earthquake or any other natural disaster, work stoppages or information technology system
failures that occur at these third-party warehouse and service providers.
It is difficult to forecast future performance, which may cause operational delays or inefficiency.
We create internal operational forecasts to determine requirements for components and materials used in the manufacture of our products and to make
production plans. Our limited operating history and commercial experience may make it difficult for us to accurately predict future production requirements. If we
forecast inaccurately, this may cause us to have shortfalls or backorders that may negatively impact our reputation with customers and cause them to seek
alternative products, or could lead us to have excessive inventory, scrap or similar operational and financial inefficiency that could harm our business.
We compete or may compete in the future against other companies, some of which have longer operating histories, more established products and
greater resources, which may prevent us from achieving significant market penetration or improved operating results.
Our industry is highly competitive, subject to change and significantly affected by new product introductions and activities of other industry participants.
These participants may enjoy several competitive advantages, including:
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greater financial and human capital resources;
significantly greater name recognition;
established relationships with physicians, referring physicians, customers and third-party payors;
additional lines of products, and the ability to offer rebates or bundle products to offer greater discounts or incentives to gain a competitive
advantage; and
established sales, marketing and worldwide distribution networks.
If another company successfully develops an approach for the treatment of gastrointestinal conditions, including obesity, that is less invasive or more effective
than our current product offerings, sales of our products would be significantly and adversely affected.
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We may be unable to successfully integrate or expand operations and processes in connection with acquisitions.
Our Surgical product line, which we recently divested, and our IGB product line were acquired in December 2013. In the future, should we grow or acquire new
assets or businesses, we expect to incrementally hire and train new personnel and implement appropriate financial and managerial controls, systems and
procedures in order to effectively manage our growth and integrate newly acquired operations and processes.
We face the risk of product liability claims that could be expensive, divert management's attention and harm our reputation and business. We may
not be able to maintain adequate product liability insurance.
Our business exposes us to the risk of product liability claims that are inherent in the testing, manufacturing and marketing of medical devices and drug
products. This risk exists even if a device or product is approved or cleared for commercial sale by the FDA and manufactured in facilities regulated by the FDA,
or an applicable foreign regulatory authority. Our products and product candidates are designed to affect important bodily functions and processes. Any side
effects, manufacturing defects, misuse or abuse associated with our products or our product candidates could result in patient injury or death. The medical
device industry has historically been subject to extensive litigation over product liability claims, and we cannot offer any assurance that we will not face product
liability suits. We may be subject to product liability claims if our products contribute to, or merely appear to or are alleged to have contributed to, patient injury or
death. In addition, an injury that is caused by the activities of our suppliers, such as those who provide us with components and raw materials, may be the basis
for a claim against us. Further, because we are obligated to continue providing certain transition services, including manufacturing and distribution support, to
ReShape for our divested Surgical Product line, we may be subject to product liability claims from sales of Surgical products by ReShape, over which we have
limited to no control. Product liability claims may be brought against us by consumers, health care providers or others selling or otherwise coming into contact
with our products or product candidates, among others. If we cannot successfully defend ourself against product liability claims, we will incur substantial liabilities
and reputational harm. In addition, regardless of merit or eventual outcome, product liability claims may result in:
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litigation costs;
distraction of management's attention from our primary business;
the inability to commercialize our products or, if approved or cleared, our product candidates;
decreased demand for our products or, if approved or cleared, product candidates;
impairment of our business reputation;
product recall or withdrawal from the market;
withdrawal of clinical trial participants;
substantial monetary awards to patients or other claimants; or
loss of revenue.
While we may attempt to manage our product liability exposure by proactively recalling or withdrawing from the market any defective products, any recall or
market withdrawal of our products may delay the supply of those products to our customers and may impact our reputation. We can provide no assurance that
we will be successful in initiating appropriate market recall or market withdrawal efforts that may be required in the future or that these efforts will have the
intended effect of preventing product malfunctions and the accompanying product liability that may result. Such recalls and withdrawals may also be used by our
competitors to harm our reputation for safety or be perceived by patients as a safety risk when considering the use of our products, either of which could have an
adverse effect on our business.
In addition, although we maintain product liability and clinical study liability insurance that we believe is appropriate, this insurance is subject to deductibles and
coverage limitations. Our current product liability insurance may not continue to be available to us on acceptable terms, if at all, and, if available, coverage may
not be adequate to protect us against any future product liability claims. If we are unable to obtain insurance at an acceptable cost or on acceptable terms with
adequate coverage or otherwise protect against potential product liability claims, we will be exposed to significant liabilities, which may harm our business. A
product liability claim, recall or other claim with respect to uninsured liabilities or for amounts in excess of insured liabilities could have a material adverse effect
on our business, financial condition and results of operations.
If our facilities or the facility of a supplier become inoperable, we will be unable to continue to research, develop, manufacture and commercialize our
products and, as a result, our business will be harmed.
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We do not have redundant facilities. We perform substantially all of our manufacturing in a single location in Costa Rica. Our manufacturing facility and
equipment would be costly to replace and would require substantial lead time to repair or replace. The manufacturing facility may be harmed or rendered
inoperable by natural or man-made disasters, including, but not limited to, flooding, fire, earthquakes, volcanic activity and power outages, which may render it
difficult or impossible for us to perform our research, development, manufacturing and commercialization activities for some period of time. The inability to
perform those activities, combined with our limited inventory of reserve raw materials and finished product, may result in the inability to continue manufacturing
our products during such periods and the loss of customers, potential liabilities under our transition services agreements with ReShape for the manufacture and
distribution of Surgical products or harm to our reputation. Although we possess insurance for damage to our property and the disruption of our business, this
insurance may not be sufficient to cover all of our potential losses and this insurance may not continue to be available to us on acceptable terms, or at all.
Our business and operations would suffer in the event of system failures, security breaches or cyber-attacks
Our computer systems, as well as those of various third-parties which we rely, including those of contractors, consultants, and law and accounting firms, may
sustain damage from computer viruses, unauthorized access, data breaches, phishing attacks, cyber criminals, natural disasters, terrorism, war and
telecommunication and electrical failures. We rely on our third-party providers to implement effective security measures and identify and correct for any such
failures, deficiencies, or breaches. The risk of a security breach or disruption, particularly through cyber-attacks or cyber intrusion, including by computer
hackers, foreign governments, and cyber terrorists, has generally increased as the number, intensity, and sophistication of attempted attacks and intrusions from
around the world have increased. We may in the future experience material system failures or security breaches that could cause interruptions in our operations
or result in material disruption of our product development programs. To the extent that any disruption or security breach were to result in a loss of or damage to
our data or applications, or inappropriate disclosure of personal, confidential or proprietary information we could incur liability.
If we experience significant disruptions in our or our third-party service providers' information technology systems, our business may be adversely
affected.
We depend on information technology systems for the efficient functioning of our business, including but not limited to accounting, data storage, compliance,
sales operations, inventory management and product support applications. A number of information technology systems in use to support our business
operations are owned and/or operated by third-party service providers over whom we have no or very limited control, and upon whom we have to rely to maintain
business continuity procedures and adequate security controls to ensure high availability of their information technology systems and to protect our proprietary
information.
While we will attempt to mitigate interruptions, they could still occur and disrupt our operations, including our ability to timely ship and track product orders,
project inventory requirements, manage our supply chain and otherwise adequately service our customers. In the event we experience significant disruptions to
our information technology systems, we may not be able to repair our systems in an efficient and timely manner. Accordingly, such events may disrupt or reduce
the efficiency of our entire operation and have a material adverse effect on our results of operations and cash flows.
From time to time, we perform business improvements or infrastructure modernizations or use service providers for key systems and processes. If any of these
initiatives are not successfully or efficiently implemented or maintained, they could adversely affect our business and our internal control over financial reporting.
The ability to protect our or our third-party service providers' information systems and electronic transmissions of sensitive and/or proprietary data
from data corruption, cyber-based attacks, security breaches or privacy violations is critical to the success of our business.
We rely on information technology networks and systems, including the Internet, to securely process, transmit and store electronic information, including
personal information of our customers and prospective product end-users. A security breach of this infrastructure, including physical or electronic break-ins,
computer viruses, malware attacks by hackers and similar breaches, may cause all or portions of our or our third-party providers' systems to be unavailable,
create system disruptions or shutdowns, and lead to erasure of critical data and software or unauthorized disclosure of confidential information. We invest in
security technology to protect our data against risks of data security breaches and cyber-attacks, and we have implemented solutions, processes, and
procedures to help mitigate these risks at various locations, such as encryption, virus protection, security firewalls and information security and privacy policies.
Nonetheless, our or our third-party service providers' information technology and infrastructure are subject to attacks by hackers and may be breached due to
inadequacy of the protective measures undertaken, human errors or omissions, malfeasance, or other disruptions. The age of our or our third-party providers'
information technology systems, as well as the level of protection and business continuity or disaster recovery capability, varies significantly by application
software and third
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-party service provider, and there can be no guarantee that any such measures, to the extent they are in place, will be effective. In addition, a security breach or
privacy violation that leads to disclosure of consumer information (including personally identifiable information, protected health information, or personal data of
EU residents) could harm our reputation, compel us to comply with disparate federal, state and foreign breach notification laws and otherwise subject us to
liability under laws that protect personal data, resulting in increased costs or loss of revenue. If we or our third-party providers are unable to prevent security
breaches or privacy violations or implement satisfactory remedial measures, our operations could be disrupted, we may be subject to additional legal claims or
proceedings, or we may suffer loss of reputation, financial loss and other regulatory penalties, which could have a material adverse impact on our business,
financial condition and results of operations. Hackers and other cyber criminals are using increasingly sophisticated and constantly evolving techniques, and we
may need to expend substantial additional resources to continue to protect against potential security breaches or to address problems caused by such attacks or
any breach of our safeguards. In addition, a data security breach could distract management or other key personnel from performing their primary operational
duties, impair our ability to transact business with our customers, lose access to critical data or systems, or compromise confidential information including trade
secrets and other intellectual property, any of which may harm our competitive position, require us to allocate more resources to improved security technologies,
or otherwise adversely affect our business.
In addition, the interpretation and application of consumer and data protection laws in the U.S., Europe and elsewhere are often uncertain, contradictory and in
flux. For example, the EU General Data Protection Regulation ("GDPR") that became effective on May 25, 2018 imposes significant obligations on many U.S.
companies, including us, to protect the personal information of European citizens. GDPR may be interpreted and applied in a manner that is inconsistent with our
data practices and that our practices will be found to be non-compliant with this regulation. If so, this could result in government-imposed fines, orders or
guidance requiring that we change our data practices, which could have a material adverse effect on our business. Complying with these various laws could
cause us to incur substantial costs or require us to change our business practices in a manner adverse to our business.
Fluctuations in insurance costs and availability could adversely affect our profitability or our risk management profile.
We hold a number of insurance policies, including product liability insurance, directors’ and officers’ liability insurance, general liability insurance, property
insurance and workers’ compensation insurance. If the costs of maintaining adequate insurance coverage increase significantly in the future, our operating
results could be materially adversely affected. Likewise, if any of our current insurance coverage should become unavailable to us or become economically
impractical, we would be required to operate our business without coverage from commercial insurance providers. If we operate our business without insurance,
we could be responsible for paying claims or judgments against us that would have otherwise been covered by insurance, which could adversely affect our
results of operations or financial condition.
Our ability to maintain our competitive position depends on our ability to attract and retain highly qualified personnel.
We believe that our continued success depends to a significant extent upon our efforts and ability to retain highly qualified personnel. All of our officers and other
employees are at-will employees, and therefore may terminate employment with us at any time with no advance notice. The replacement of any of our key
personnel likely would involve significant time and costs and may significantly delay or prevent the achievement of our business objectives and would harm our
business.
Many of our employees have become or will soon become vested in a substantial amount of stock or number of stock options. Our employees may be more
likely to leave the Company if the shares they own or the shares underlying their vested options have significantly appreciated in value relative to the original
purchase prices of the shares or the exercise prices of the options, or if the exercise prices of the options that they hold are significantly below the market price
of our common stock. Further, our employees’ ability to exercise those options and sell their stock in a public market may result in a higher than normal turnover
rate. We do not carry any “key person” insurance policies.
We may fail to perform certain services under the transition services agreement with ReShape, and the performance of such services may negatively
impact our business and operations.
We have entered into a transition services agreement and related supply and distribution agreements with ReShape in connection with the sale of our
Surgical product line to ReShape pursuant to which we agreed, among other things, to manufacture the products for ReShape for up to two years and serve as
ReShape’s distributor of the product line outside of the U.S. for up to one year. If we do not satisfactorily perform our obligations under these agreements, we
may be subject to liabilities to ReShape or may be required to re-perform such services at our expense.
If we fail to maintain an effective system of internal controls in the future, we may not be able to accurately or timely report our financial condition or
results of operations, which may adversely affect investor confidence in us and, as a result, the value of our common stock.
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In connection with the audit of our consolidated financial statements for the year ended December 31, 2018, we identified a material weakness in our internal
controls over financial reporting. The reported material weakness did not result in any adjustment to our financial statements or restatement of prior financial
statements. A material weakness is a deficiency, or combination of deficiencies, in internal controls over financial reporting such that there is a reasonable
possibility that a material misstatement of a company's annual or interim financial statements will not be prevented or detected on a timely basis. We are
implementing measures designed to improve our internal controls over financial reporting to remediate this material weakness. In addition, our independent
registered public accounting firm, which audits our financial statements, issued an adverse opinion on the effectiveness of internal control over financial reporting
as of December 31, 2018.
We cannot assure you that the measures we have taken to date, and are continuing to implement, will be sufficient to remediate the material weakness we have
identified or that future material weaknesses will not occur.
If we fail to remediate our existing material weakness or identify new material weaknesses in our internal controls over financial reporting, investors may lack
confidence in the accuracy and completeness of our financial reports and the market price of our common stock could be negatively affected regardless of
whether material inaccuracies are determined to exist in our reported financial statements. If material inaccuracies are determined to exist in our financial
statements or we are unable to report our financial statements on a timely basis, we could also become subject to investigations by Nasdaq, the SEC, or other
regulatory authorities, and become subject to litigation from investors and stockholders, which could harm our reputation and financial condition or divert financial
and management resources from our regular business activities.
The United Kingdom’s pending exit from the EU could lead to increased market access issues, legal issues, and economic conditions which could
adversely impact our business.
On June 23, 2016, the electorate in the United Kingdom ("U.K.") voted in favor of leaving the EU (commonly referred to as “Brexit”). On March 29, 2017, the
U.K. government delivered to the European Council notice of its intention to leave the EU and, in the absence of an executed withdrawal agreement with the EU,
the effective date of the U.K.’s withdrawal from the EU will be March 29, 2019. Our subsidiary that manages our European business is located in the U.K. and,
thus, there are many ways in which our business operations may be impacted by Brexit, only some of which we can identify at this time. Our notified body in
Europe was BSI which is based in the U.K., which will no longer have standing in the EU as a notified body. We are transferring our notified body to BSI in the
Netherlands which will require that we change product labeling and packaging for all our products and other potential implications that have yet to be identified at
this time. Financial markets could experience volatility which could negatively impact currency exchange rates and therefore the translated U.S. dollar value of
our local currency sales to customers in the U.K. or Europe. We do not hedge our foreign currency translation risk. Our warehousing and distribution hub for
Europe is in the Netherlands and distribution of our products in the U.K. market may be slowed or disrupted and our U.K. sales may suffer as a result. Our efforts
to mitigate the risk of this supply disruption to our U.K. customers may not prove sufficient. Until the final terms of Brexit are known, impacts to relevant
currencies and business operations will be difficult to predict.
Risks Related to Regulatory Review and Approval of Our Products
Our products are subject to extensive regulation by the FDA, including the requirement to obtain premarket approval and the requirement to report
adverse events and violations of the U.S. Federal Food, Drug and Cosmetic Act that could present significant risk of injury to patients. Even though
we have received FDA approval of our PMA applications and 510(k) clearances to commercially market our products, we will continue to be subject to
extensive FDA regulatory oversight.
Our products are subject to rigorous regulation by the FDA and numerous other federal, state and foreign governmental authorities. The process of obtaining
regulatory clearances or approvals to market a medical device can be costly and time consuming, and we may not be able to obtain these clearances or
approvals on a timely basis, if at all. In particular, the FDA permits commercial distribution of a new medical device only after the device has received clearance
under Section 510(k) of the U.S. Federal Food, Drug and Cosmetic Act, or is the subject of an approved premarket approval application, or PMA unless the
device is specifically exempt from those requirements. The FDA will clear marketing of a lower risk medical device through the 510(k) process if the
manufacturer demonstrates that the new product is substantially equivalent to other pre-amendment, 510(k)-exempt, 510(k) cleared products, or PMA-approved
products that have subsequently been down-classified. If the FDA determines that the device is not "substantially equivalent" to a predicate device, or if the
device is automatically classified into Class III, the device sponsor must then fulfill the much more rigorous premarketing requirements of the PMA approval
process, or seek reclassification of the device through the de novo process. Pursuant to amendments to the statute in 2012, a manufacturer can also submit a
petition for a direct de novo review if the manufacturer is unable to identify an appropriate predicate device and the new device or new use of the device
presents a moderate or low risk.
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High risk devices deemed to pose the greatest risk, such as life-sustaining, life-supporting, or implantable devices, or devices not deemed substantially
equivalent to a previously cleared device, require the approval of a PMA. The PMA process is more costly, lengthy and uncertain than the 510(k) clearance
process. A PMA application must be supported by extensive data, including, but not limited to, technical, preclinical, clinical trial, manufacturing and labeling
data, to demonstrate to the FDA’s satisfaction the safety and efficacy of the device for its intended use. Of our products, Orbera is a class III product and has
been approved through the FDA's PMA process and our OverStitch products are class II and have been cleared through the 510(k) process. In addition,
although FDA has granted PMA approval for our class III products, holding those approvals in good standing requires ongoing compliance with FDA reporting
requirements and conditions of approval including the completion of lengthy and expensive post market approval studies. Despite the time, effort and cost
required to obtain approval, there can be no assurance that we will be able to meet all FDA requirements to maintain our PMA approvals or that circumstances
outside of our control may cause the FDA to withdraw our PMA approvals.
Our failure to comply with U.S. federal, state and foreign governmental regulations could lead to the issuance of warning letters or untitled letters, the imposition
of injunctions, suspensions or loss of regulatory clearance or approvals, product recalls, termination of distribution, product seizures or civil penalties. In the most
extreme cases, criminal sanctions or closure of our manufacturing facility are possible.
Foreign governmental authorities that regulate the manufacture and sale of medical devices have become increasingly stringent and, to the extent we market
and sell our products internationally, we may be subject to rigorous international regulation in the future. In these circumstances, we would rely significantly on
our foreign independent distributors to comply with the varying regulations, and any failures on their part could result in restrictions on the sale of our products in
foreign countries.
If we fail to comply with U.S. federal and state healthcare fraud and abuse or data privacy and security laws and regulations, we could be subject to
penalties, including, but not limited to, administrative, civil and criminal penalties, damages, fines, disgorgement, exclusion from participation in
governmental healthcare programs and the curtailment of our operations, any of which could adversely impact our reputation and business
operations.
Our industry is subject to numerous U.S. federal and state healthcare laws and regulations, including, but not limited to, anti-kickback, false claims, privacy and
transparency laws and regulations. Our relationships with healthcare providers and entities, including but not limited to, physicians, hospitals, ambulatory surgery
centers, group purchasing organizations and our international distributors are subject to scrutiny under these laws. Violations of these laws or regulations can
subject us to penalties, including, but not limited to, administrative, civil and criminal penalties, damages, fines, disgorgement, imprisonment, exclusion from
participation in federal and state healthcare programs, including the Medicare, Medicaid and Veterans Administration health programs and the curtailment of our
operations. Healthcare fraud and abuse regulations are complex and subject to evolving interpretations and enforcement discretion, and even minor irregularities
can potentially give rise to claims that a statute or regulation has been violated. The laws that may affect our ability to operate include, but are not limited to:
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the federal Anti-Kickback Statute, which prohibits, among other things, persons and entities from knowingly and willfully soliciting, receiving,
offering or paying remuneration, directly or indirectly, in cash or in kind, in exchange for or to induce either the referral of an individual for, or the
purchase, lease, order or recommendation of, any good, facility, item or service for which payment may be made, in whole or in part, under
federal healthcare programs such as Medicare and Medicaid; the FCA, which prohibits, among other things, individuals or entities from
knowingly presenting, or causing to be presented, claims for payment from Medicare, Medicaid or other third-party payors that are false or
fraudulent; knowingly making using, or causing to be made or used, a false record or statement to get a false or fraudulent claim paid or
approved by the government; or knowingly making, using, or causing to be made or used, a false record or statement to avoid, decrease or
conceal an obligation to pay money to the federal government;
the civil monetary penalties statute, which imposes penalties against any person or entity who, among other things, is determined to have
presented or caused to be presented, a claim to a federal healthcare program that the person knows, or should know, is for an item or service
that was not provided as claimed or is false or fraudulent;
the federal Health Insurance Portability and Accountability Act of 1996 , and the federal Health Information Technology for Economic and Clinical
Health Act of 2009, each as amended, and their implementing regulations, which impose requirements upon certain entities relating to the
privacy, security, and transmission of health information;
the Federal Trade Commission Act and similar laws regulating advertisement and consumer protections;
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the federal Foreign Corrupt Practices Act, which prohibits corrupt payments, gifts or transfers of value to foreign officials; and
foreign or U.S. state law equivalents of each of the above federal laws
While we do not submit claims for reimbursement to payors and our customers make the ultimate decision on how to submit claims, from time-to-time, we may
be asked for reimbursement guidance by our customers. Failure to comply with any of these laws, or any action against us for alleged violation of these laws,
even if we successfully defend against it, could result in a material adverse effect on our reputation, business, results of operations and financial condition.
We have entered into consulting agreements with physicians, including some who use our products and may influence the ordering and use of our products.
While we believe these transactions were structured to comply with all applicable laws, including state and federal anti-kickback laws, to the extent applicable,
should the government take the position that these transactions are prohibited arrangements that must be restructured or discontinued, we could be subject to
significant penalties. The medical device industry’s relationship with physicians is under increasing scrutiny by the OIG, the DOJ, state attorneys general, and
other foreign and domestic government agencies. Our failure to comply with laws, rules and regulations governing our relationships with physicians, or an
investigation into our compliance by the OIG, DOJ, state attorneys general and other government agencies could significantly harm our business.
To enforce compliance with the healthcare regulatory laws, federal and state enforcement bodies have recently increased their scrutiny of interactions between
healthcare companies and healthcare providers, which has led to a number of investigations, prosecutions, convictions and settlements in the healthcare
industry. Responding to investigations can be time and resource consuming and can divert management’s attention from the business. Additionally, as a result of
these investigations, healthcare providers and entities may have to agree to onerous additional compliance and reporting requirements as part of a consent
decree or corporate integrity agreement. Any such investigation or settlement could increase our costs or otherwise have an adverse effect on our business.
In certain cases, actions to pursue claims under the FCA may be brought by private individuals on behalf of the government. These lawsuits are known as “qui
tam” actions and the individuals bringing such suits, sometimes known as “relators” or, more commonly, “whistleblowers” may share in any amounts paid by the
entity to the government in fines or settlement. For example, in March 2017, we were informed by the Department of Justice that we were a subject in a federal
False Claims Act investigation. The government’s investigation concerned whether there had been a violation of the False Claims Act, 31 U.S.C. § 3729 et. seq.
related to our marketing of the Lap-Band System, including the web-based physician locator provided on our website Lap-Band.com. We cooperated fully with
the investigation, and on August 21, 2017, we were notified by the Department of Justice that we were no longer a subject in such investigation.
In addition, there has been a recent trend of increased federal and state regulation of payments and transfers of value provided to healthcare professionals or
entities. The Affordable Care Act’s provision commonly referred to as the federal Physician Payment Sunshine Act, as well as similar state and foreign laws,
impose obligations on medical device manufacturers to annually report certain payments and other transfers of value provided, directly or indirectly, to certain
physicians and teaching hospitals, as well as ownership and investment interests held by physicians and their family members. Failure to comply with any of
these state, federal, or foreign transparency and disclosure requirements could subject us to significant fines and penalties. The shifting commercial compliance
environment and the need to build and maintain robust and expandable systems to comply with different compliance and reporting requirements in multiple
jurisdictions increase the possibility that a healthcare company may fail to comply fully with one or more of these requirements.
Although compliance programs can mitigate the risk of investigation and prosecution for violations of these laws, the risks cannot be entirely eliminated. Any
action against us for violation of these laws, even if we successfully defend against it, could cause us to incur significant legal expenses and divert our
management’s attention from the operation of our business.
Most of these laws apply to not only the actions taken by us, but also actions taken by our distributors. We have limited knowledge and control over the business
practices of our distributors, and we may face regulatory action against us as a result of their actions which could have a material adverse effect on our
reputation, business, results of operations and financial condition.
In addition, the scope and enforcement of these laws is uncertain and subject to rapid change in the current environment of healthcare reform, especially in light
of the lack of applicable precedent and regulations. Federal or state regulatory authorities might challenge our current or future activities under these laws. Any
such challenge could have a material adverse effect on our reputation, business, results of operations and financial condition. Any state or federal regulatory
review of the Company, regardless of the outcome, would be costly and time-consuming. Additionally, we cannot predict the impact of any changes in these
laws, whether or not retroactive.
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Healthcare cost containment pressures and legislative or administrative reforms resulting in restrictive reimbursement practices of third-party payors
could decrease the demand for our products, the prices that customers are willing to pay and the number of procedures performed using our
products, which could have an adverse effect on our business.
All third-party payors, whether governmental or commercial, whether inside the U.S. or outside, are developing increasingly sophisticated methods of controlling
healthcare costs. These cost-control methods include prospective payment systems, bundled payment models, capitated arrangements, group purchasing,
benefit redesign, pre-authorization processes and requirements for second opinions prior to major surgery. These cost-control methods also potentially limit the
amount that healthcare providers may be willing to pay for our products. Therefore, coverage or reimbursement for medical devices may decrease in the future.
Federal and state governments in the U.S. and outside the U.S. may enact legislation to modify the healthcare system which may result in increased
government price controls, additional regulatory mandates and other measures designed to constrain medical costs. These reform measures may limit the
amounts that federal and state governments will pay for healthcare products and services, and also indirectly affect the amounts that private payors are willing to
pay. These changes could result in reduced demand for our products and may adversely affect our operating results.
Further, from time to time, typically on an annual basis, payment amounts are updated and revised by third-party payors. In cases where the cost of certain of
our products are recovered by the healthcare provider as part of the payment for performing a procedure and not separately reimbursed or paid directly by the
patient, these updates could directly impact the demand for our products. We cannot predict how pending and future healthcare legislation will impact our
business, and any changes in coverage and reimbursement that further restricts coverage of our products or lowers reimbursement for procedures using our
products could materially affect our business.
Modifications to our marketed products may require new 510(k) or de novo clearances or PMA approvals, or may require us to cease marketing or
recall the modified products until clearances or approvals are obtained.
Modifications to our products may require new regulatory approvals or clearances, including 510(k) or de novo clearances or premarket approvals, or require us
to recall or cease marketing the modified devices until these clearances or approvals are obtained. The FDA requires device manufacturers to initially make and
document a determination of whether or not a modification requires a new approval, supplement or clearance. For example, a manufacturer may determine that
a modification does not significantly affect safety or efficacy and does not represent a major change in its intended use, so that no new 510(k) clearance is
necessary. However, the FDA can review a manufacturer's decision and may disagree. The FDA may also on its own initiative determine that a new clearance or
approval is required. We have made modifications to our products in the past and may make additional modifications in the future that we believe do not or will
not require additional clearances or approvals. If the FDA disagrees and requires new clearances or approvals for the modifications, we may be required to
recall and to stop marketing our products as modified, which could require us to redesign our products and harm our operating results. In these circumstances,
we may be subject to significant enforcement actions.
If a manufacturer determines that a modification to an FDA-cleared device could significantly affect its safety or efficacy, or would constitute a major change in
its intended use, then the manufacturer must file for a new 510(k) clearance or possibly de novo, down classification, or a premarket approval application. Where
we determine that modifications to our products require a new 510(k) or de novo clearance or premarket approval application, we may not be able to obtain
those additional clearances or approvals for the modifications or additional indications in a timely manner, or at all. For those products sold in the EU, we must
notify our EU Notified Body if significant changes are made to the products or if there are substantial changes to our quality assurance systems affecting those
products. Obtaining clearances and approvals can be a time-consuming process, and delays in obtaining required future clearances or approvals would
adversely affect our ability to introduce new or enhanced products in a timely manner, which in turn would harm our future growth.
For our class III devices, new PMAs or PMA supplements are required for modifications that affect the safety or effectiveness of the device, including, for
example, certain types of modifications to the device's indication for use, manufacturing process, labeling and design. PMA supplements often require
submission of the same type of information as a PMA, except that the supplement is limited to information needed to support any changes from the device
covered by the original PMA and may not require as extensive clinical data or the convening of an advisory panel. There is no guarantee that the FDA will grant
PMA approval of our future products and failure to obtain necessary approvals for our future products would adversely affect our ability to grow our business.
Delays in receipt or failure to receive approvals, the loss of previously received approvals, or the failure to comply with existing or future regulatory requirements
could reduce our sales, profitability and future growth prospects.
If our products contribute to a death or a serious injury, or malfunction in certain ways, we will be subject to medical device reporting regulations,
which can result in voluntary corrective actions or agency enforcement actions.
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Under the FDA medical device reporting regulations, medical device manufacturers are required to report to the FDA information that a device has or may have
caused or contributed to a death or serious injury or has malfunctioned in a way that would likely cause or contribute to death or serious injury if the malfunction
of the device were to recur. As required per the FDA Code of Federal Regulations (21 CFR) Part 803 we have established procedures and processes for
documentation and evaluation of all complaints relative to reporting requirements. As with all device manufacturers, we have 30 days from "becoming aware" of
an incident to submit to FDA a MDR for an event that reasonably suggests that a device has or may have caused or contributed to the incident, or five work days
for an event designated by the FDA or an event that requires remedial action to prevent an unreasonable risk of substantial harm to the public health. As part of
this assessment we conduct a complaint investigation of each reported Adverse Event. In the event that an investigation is inconclusive (i.e., the investigation
cannot confirm whether or not our product was a cause of an Adverse Event), our policy and practice is to default in favor of reporting events to the FDA. If we
fail to report these events to the FDA within the required timeframes, or at all, FDA could take enforcement action against us. Any such adverse event involving
our products also could result in future voluntary corrective actions, such as recalls or customer notifications, or agency action, such as inspection or
enforcement action. Any corrective action, whether voluntary or involuntary, as well as defending ourselves in a lawsuit, will require the dedication of our time
and capital, distract management from operating our business, and may harm our reputation and financial results.
The FDA may issue safety alerts in response to its review of reported Adverse Events that do not require voluntary corrective actions or agency enforcement but
that still negatively affect our product marketing efforts. For instance, in February of 2017, the FDA issued an update to alert health care providers of reported
adverse events of liquid-filled intragastric balloons including several dozen incidents of balloon over-inflation and, separately, a set of reports of acute
pancreatitis. In August of 2017 the FDA issued a second update to alert health care providers of five reports of unanticipated deaths that had been reported since
2016 in patients with liquid-filled intragastric balloons, four of which had received our IGB . In June 2018, the FDA issued a new update to alert health care
providers of five additional reports worldwide of unanticipated deaths that had been reported since the August 2017 letter to Health Care Providers and also
announced the approval of labeling changes for the Orbera Balloon System. Four of the additional mentioned reported deaths involved patients who had
received our IGB product. In each case, the occurrence had been self-reported by us to the FDA as part of our normal product surveillance process. Neither the
FDA's August 2017 letter to Health Care Providers nor the June 2018 letter to Health Care Providers indicates that the patient deaths were related to the
intragastric balloon product or the insertion procedures. However, both letters to Health Care Providers subjected us to adverse publicity that harmed our
business.
Our international operations must comply with local laws and regulations that present certain legal and operating risks, which could adversely
impact our business, results of operations and financial condition.
We currently operate in the U.S., Canada, Brazil, Costa Rica, Australia and various European countries and our products are approved for sale in over 70
different countries; our activities are subject to U.S. and foreign governmental trade, import and export and customs regulations and laws. Compliance with these
regulations and laws is costly and exposes us to penalties for non-compliance.
Other laws and regulations that can significantly impact us include various anti-bribery laws, including the U.S. FCPA, as well as export control laws and
economic sanctions laws. Any failure to comply with applicable legal and regulatory obligations could impact us in a variety of ways that include, but are not
limited to, significant costs and disruption of business associated with an internal and/or government investigation, criminal, civil and administrative penalties,
including imprisonment of individuals, fines and penalties, denial of export privileges, seizure of shipments, restrictions on certain business activities and
exclusion or debarment from government contracting.
Our international operations present the same risks as presented by our U.S. operations plus unique risks inherent in operating in foreign jurisdictions. These
unique risks include:
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foreign regulatory approval which could result in delays leading to possible insufficient inventory levels;
foreign currency exchange rate fluctuations;
reliance on sales people and distributors;
pricing pressure that we may experience internationally;
competitive disadvantage to competitors who have more established business and customer relationships in a given market;
reduced or varied intellectual property rights available in some countries;
economic instability of certain countries;
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the imposition of additional U.S. and foreign governmental controls, regulations and laws;
changes in duties and tariffs, license obligations , importation requirements and other non-tariff barriers to trade;
scrutiny of foreign tax authorities which could result in significant fines, penalties and additional taxes being imposed on the Company; and
laws and business practices favoring local companies.
If we experience any of these events, our business, results of operations and financial condition may be harmed.
If we or our suppliers fail to comply with ongoing FDA or foreign regulatory authority requirements, or if we experience unanticipated problems with
our products, these products could be subject to restrictions or withdrawal from the market.
Any product for which we obtain approval or clearance, and the manufacturing processes, reporting requirements, post-market clinical data and promotional
activities for such product, will be subject to continued regulatory review, oversight and periodic inspections by the FDA and other domestic and foreign
regulatory bodies. In particular, we and our third-party suppliers are required to comply with the QSR. The QSR covers the methods and documentation of the
design, testing, production, control, quality assurance, labeling, packaging, sterilization, storage and shipping of our products. Compliance with applicable
regulatory requirements is subject to continual review and is monitored rigorously through periodic inspections by the FDA. If we, or our manufacturers, fail to
adhere to QSR requirements in the U.S. or experience delays in obtaining necessary regulatory approvals or clearances, this could delay production of our
products and lead to fines, difficulties in obtaining regulatory approvals or clearances, recalls, enforcement actions, including injunctive relief or consent decrees,
or other consequences, which could, in turn, have a material adverse effect on our financial condition or results of operations.
In addition, the FDA audits compliance with the QSR through periodic announced and unannounced inspections of manufacturing and other facilities. The failure
by the Company or one of our suppliers to comply with applicable statutes and regulations administered by the FDA, or the failure to timely and adequately
respond to any adverse inspection observations or product safety issues, could result in any of the following enforcement actions:
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untitled letters, warning letters, fines, injunctions, consent decrees and civil penalties;
unanticipated expenditures to address or defend such actions;
customer notifications or repair, replacement, refunds, recall, detention or seizure of our products;
operating restrictions, partial suspension or total shutdown of production;
refusing or delaying our requests for regulatory approvals or clearances of new products or modified products;
withdrawing PMA approvals that have already been granted;
refusal to grant export approval for our products; or
criminal prosecution.
Any of these sanctions could have a material adverse effect on our reputation, business, results of operations and financial condition. Furthermore, our key
component suppliers may not currently be or may not continue to be in compliance with all applicable regulatory requirements, which could result in a failure to
produce our products on a timely basis and in the required quantities, if at all.
Our products and operations are required to comply with standards set by foreign regulatory bodies, and those standards, types of evaluation and scope of
review differ among foreign regulatory bodies. If we fail to comply with any of these standards adequately or if changes to our manufacturing or supply practices
require additional regulatory approval, a foreign regulatory body may take adverse actions or cause delays within their jurisdiction similar to those within the
power of the FDA. Any such action or circumstance may harm our reputation and business, and could have an adverse effect on our business, results of
operations and financial condition.
Our products may in the future be subject to product recalls that could harm our reputation, business and financial results.
The FDA and similar foreign governmental authorities have the authority to require the recall of commercialized products in the event of material deficiencies or
defects in design or manufacture. In the case of the FDA, the authority to require a recall must be based on an FDA finding that there is a reasonable probability
that the device would cause serious injury or death. In
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addition, foreign governmental bodies have the authority to require the recall of our products in the event of material deficiencies or defects in design or
manufacture. Manufacturers may, under their own initiative, recall a product if any material deficiency in a device is found. A government-mandated or voluntary
recall by us or one of our distributors could occur as a result of component failures, manufacturing errors, design or labeling defects or other deficiencies and
issues. Recalls of any of our products would divert managerial and financial resources and have an adverse effect on our financial condition and results of
operations. The FDA requires that certain classifications of recalls be reported to FDA within 10 working days after the recall is initiated. Companies are required
to maintain certain records of recalls, even if they are not reportable to the FDA. We may initiate voluntary recalls involving our products in the future that we
determine do not require notification of the FDA. If the FDA disagrees with our determinations, they could require us to report those actions as recalls. A future
recall announcement could harm our reputation with customers and negatively affect our sales. In addition, the FDA could take enforcement action for failing to
report the recalls when they were conducted.
U.S. legislative, FDA or global regulatory reforms may make it more difficult and costly for us to obtain regulatory approval of our product candidates
and to manufacture, market and distribute our products after approval is obtained.
From time to time, legislation is drafted and introduced in Congress that could significantly change the statutory provisions governing the regulatory approval,
manufacture and marketing of regulated products or the reimbursement thereof. Any new regulations or revisions or reinterpretations of existing regulations may
impose additional costs or lengthen review times of future products. In addition, FDA regulations and guidance are often revised or reinterpreted by the agency in
ways that may significantly affect our business and our products. It is impossible to predict whether legislative changes will be enacted or FDA regulations,
guidance or interpretations changed, and what the impact of such changes, if any, may be.
For example, in December 2016, the 21 st Century Cures Act was enacted into law. The Act includes many provisions that impact the regulation of medical
devices. For example, the Act includes provisions regarding, among other things:
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expediting the development and prioritizing FDA review of “breakthrough” technologies
expanding the scope of diseases/conditions eligible for a humanitarian device exemption
encouraging FDA to rely more on real-world evidence to demonstrate device safety and effectiveness
emphasizing the least burdensome standard for device reviews
Moreover, leadership, personnel and structural changes within the FDA as well as recent and future federal election outcomes could result in significant
legislative and regulatory reforms impacting the FDA’s regulation of our products. Any change in the laws or regulations that govern the clearance and approval
processes relating to our current and future products could make it more difficult and costly to obtain clearance or approval for new products, or to produce,
market and distribute existing products. Significant delays in receiving clearance or approval, or the failure to receive clearance or approval for our new products
would have an adverse effect on our ability to expand our business.
In addition, on May 25, 2017, the new EU Medical Devices Regulation ("MDR 2017") was published. When it becomes effective on May 26, 2020, the MDR
2017 will change the obligations of medical device manufacturers with product in the EU and will subject high risk medical devices to additional scrutiny during
the conformity assessment procedure. MDR 2017 repeals and replaces the EU Medical Devices Directive and intended to eliminate current differences in the
regulation of medical devices among EEA Member States. Once applicable, the new regulations will among other things:
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add new the rules on placing devices on the market and reinforce surveillance once they are available;
establish explicit provisions on a manufacturers' responsibilities for the follow-up of the quality, performance and safety of devices placed on the
market;
require the traceability of medical devices throughout the supply chain to the end-user or patient through a unique identification number;
set up a central database to provide patients, healthcare professionals and the public with comprehensive information on products available in
the EU; and
add rules for the assessment of certain high-risk devices which may have to undergo an additional check by experts before they are placed on
the market
Once applicable, the MDR 2017 may impose increased compliance obligations for us to access the EU market.
In order to continue to sell our products in Europe, we must maintain our CE marks and continue to comply with certain EU directives and, in the future with
MDR 2017. Our failure to continue to comply with applicable foreign regulatory requirements,
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including those administered by authorities of the EEA countries, could result in enforcement actions against us, including refusal, suspension or withdrawal of
our CE Certificates of Conformity by our Notified Body, which could impair our ability to market products in the EEA in the future. Any changes to the
membership of the EU, such as the departure of the United Kingdom (Brexit), may impact the regulatory requirements for the impacted countries and impair our
business operations and our ability to market products in such countries.
If the third parties on which we rely to conduct our clinical trials and to assist us with post market studies do not perform as contractually required or
expected, we may not be able to maintain regulatory approval for our products.
We often must rely on third parties, such as medical institutions, clinical investigators, contract research organizations and contract laboratories to conduct our
clinical trials and provide data or prepare deliverables for our PMA post market studies required to keep our PMA approvals in good standing. If these third parties
do not successfully carry out their contractual duties or regulatory obligations or meet expected deadlines, if these third parties need to be replaced, or if the
quality or accuracy of the data they obtain is compromised due to the failure to adhere to applicable clinical protocols or regulatory requirements or for other
reasons, our clinical activities or clinical trials may be extended, delayed, suspended or terminated, and we may be at risk of losing our regulatory approvals or
fail to obtain desired regulatory approvals, which could harm our business.
Our operations involve the use of hazardous and toxic materials, and we must comply with environmental laws and regulations, which can be
expensive, and may affect our business and operating results.
We are subject to a variety of federal, state and local regulations relating to the use, handling, storage, disposal and human exposure to hazardous materials.
Liability under environmental laws can be joint and several and without regard to comparative fault, and environmental laws could become more stringent over
time, imposing greater compliance costs and increasing risks and penalties associated with violations, which could harm our business. Although we believe that
our activities conform in all material respects with environmental laws, there can be no assurance that violations of environmental and health and safety laws will
not occur in the future as a result of human error, accident, equipment failure or other causes. The failure to comply with past, present or future laws could result
in the imposition of fines, third-party property damage and personal injury claims, investigation and remediation costs, the suspension of production or a
cessation of operations. We also expect that our operations will be affected by other new environmental and health and safety laws on an ongoing basis.
Although we cannot predict the ultimate impact of any such new laws, they will likely result in additional costs, and may require us to change how we
manufacture our products, which could have a material adverse effect on our business.
Failure to comply with the U.S. FCPA and similar laws associated with any activities outside the U.S. could subject us to penalties and other adverse
consequences.
We are subject to the U.S. FCPA, and other anti-bribery legislation around the world. The FCPA generally prohibits covered entities and their intermediaries from
engaging in bribery or making other prohibited payments, offers or promises to foreign officials for the purpose of obtaining or retaining business or other
advantages. In addition, the FCPA imposes recordkeeping and internal controls requirements on publicly traded corporations and their foreign affiliates. We may
face significant risks if we fail to comply with the FCPA and other similar foreign antibribery laws. Although we have implemented safeguards and training,
including company policies requiring our employees, distributors, consultants and agents to comply with the FCPA and similar laws, our international operations
nonetheless present a risk of unauthorized payments or offers of payments by one of our employees, consultants, sales agents, or distributors, because these
parties are not always subject to our control. Any violation of the FCPA and related policies could result in severe criminal or civil sanctions, which could have a
material and adverse effect on our reputation, business, operating results and financial condition.
Risks Related to Our Intellectual Property
Intellectual property rights may not provide adequate protection, which may permit third parties to compete against us more effectively.
Our success depends significantly on our ability to protect our proprietary rights to the technologies and inventions used in, or embodied by, our products. To
protect our proprietary technology, we rely on patent protection, as well as a combination of copyright, trade secret and trademark laws, as well as nondisclosure,
confidentiality and other contractual restrictions in our supply, consulting and employment agreements. However, these legal means afford only limited protection
and may not adequately protect our rights or permit us to gain or keep any competitive advantage.
Patents
The process of applying for patent protection itself is time consuming and expensive and we cannot assure investors that all of our patent applications will issue
as patents or that, if issued, they will issue in a form that will be advantageous to us. The rights granted to us under our patents, including prospective rights
sought in our pending patent applications, may not be
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meaningful or provide us with any commercial advantage and they could be opposed, contested or circumvented by our competitors or be declared invalid or
unenforceable in judicial or administrative proceedings.
We own numerous issued patents and pending patent applications that relate to our products and methods of using our products, as well as individual
components of our products. If any of our patents are challenged, invalidated or legally circumvented by third parties, and if we do not own other enforceable
patents protecting our products, competitors could market products and use processes that are substantially similar to, or superior to, ours, and our business will
suffer. In addition, the patents we own may not be sufficient in scope or strength to provide us with any meaningful protection or commercial advantage, and
competitors may be able to design around our patents or develop products that provide outcomes comparable to ours without infringing on our intellectual
property rights. We may also determine from time to time to discontinue the payment of maintenance fees, if we determine that certain patents are not material
to our business.
We may be subject to a third-party preissuance submission of prior art to the U.S. Patent and Trademark Office ("USPTO"), or become involved in opposition,
derivation, reexamination, inter partes review, post-grant review, or other patent office proceedings or litigation, in the U.S. or elsewhere, challenging our patent
rights or the patent rights of others. An adverse determination in any such submission, proceeding or litigation could reduce the scope of, or invalidate, our patent
rights, allow third parties to commercialize our technology or products and compete directly with us, without payment to the Company, or result in our inability to
manufacture or commercialize products without infringing third-party patent rights.
Moreover, the USPTO and various foreign governmental patent agencies require compliance with a number of procedural, documentary, fee payment and other
similar provisions during the patent application process. In addition, periodic maintenance fees on issued patents must be paid to the USPTO and foreign patent
agencies over the lifetime of the patent. While an unintentional lapse can in many cases be cured by payment of a late fee or by other means in accordance with
the applicable rules, there are situations in which noncompliance can result in abandonment or lapse of the patent or patent application, resulting in partial or
complete loss of patent rights in the relevant jurisdiction. Non-compliance events that could result in abandonment or lapse of a patent or patent application
include, but are not limited to, failure to respond to official actions within prescribed time limits, non-payment of fees and failure to properly legalize and submit
formal documents. If we fail to maintain the patents and patent applications covering our products or procedures, we may not be able to stop a competitor from
marketing products that are the same as or similar to our products, which would have a material adverse effect on our business.
Furthermore, we do not have patent rights in certain foreign countries in which a market may exist in the future, and the laws of many foreign countries may not
protect our intellectual property rights to the same extent as the laws of the U.S. Thus, we may not be able to stop a competitor from marketing and selling in
foreign countries products that are the same as or similar to our products.
Trademarks
We rely on our trademarks as one means to distinguish our products from the products of our competitors and have registered or applied to register many of
these trademarks. Our trademark applications may not be approved, however. Third parties may oppose our trademark applications, or otherwise challenge our
use of the trademarks. In the event that our trademarks are successfully challenged, we could be forced to rebrand our products, which could result in loss of
brand recognition and could require us to devote resources to advertising and marketing new brands. Our competitors may infringe our trademarks and we may
not have adequate resources to enforce our trademarks.
Trade Secrets and Know-How
We may not be able to prevent the unauthorized disclosure or use of our technical knowledge or other trade secrets by consultants, vendors, former employees
or current employees, despite the existence of confidentiality agreements and other contractual restrictions. Monitoring unauthorized uses and disclosures of our
intellectual property is difficult, and we do not know whether the steps we have taken to protect our intellectual property will be effective.
Moreover, our competitors may independently develop equivalent knowledge, methods and know-how. Competitors could purchase our products and attempt to
replicate some or all of the competitive advantages we derive from our development efforts, willfully infringe our intellectual property rights, design around our
protected technology or develop their own competitive technologies that fall outside of our intellectual property rights. If our intellectual property is not adequately
protected so as to protect our market against competitors’ products and methods, our competitive position could be adversely affected, as could our business.
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We may in the future be a party to patent and other intellectual property litigation and administrative proceedings that could be costly and could
interfere with our ability to sell our products.
The medical device industry has been characterized by frequent and extensive intellectual property litigation. Additionally, the bariatric and therapeutic
endoscopy markets are competitive. Our competitors or other patent holders may assert that our products and the methods we employ are covered by their
patents. If our products or methods are found to infringe, we could be prevented from manufacturing or marketing our products. In the event that we become
involved in such a dispute, we may incur significant costs and expenses and may need to devote resources to resolving any claims, which would reduce the
cash we have available for operations and may be distracting to management. We do not know whether our competitors or potential competitors have applied for,
will apply for, or will obtain patents that will prevent, limit or interfere with our ability to make, use, sell, import or export our products.
Competing products may also be sold in other countries in which our patent coverage might not exist or be as strong. If we lose a foreign patent lawsuit, alleging
our infringement of a competitor’s patents, we could be prevented from marketing our products in one or more foreign countries. We may also initiate litigation
against third parties to protect our own intellectual property. Our intellectual property has not been tested in prior litigation. If we initiate litigation to protect our
rights, we run the risk of having our intellectual property rights adjudicated, invalidated, or limited in scope, which would undermine our competitive position.
Litigation related to infringement and other intellectual property claims, with or without merit, is unpredictable, expensive and time-consuming and can divert
management’s attention from our core business. If we lose this kind of litigation, a court could require us to pay substantial damages, treble damages and
attorneys’ fees, and prohibit us from using technologies essential to our products, any of which would have a material adverse effect on our business, results of
operations and financial condition. If relevant patents held by other parties are upheld as valid and enforceable and we are found to infringe, we could be
prevented from selling our products unless we can obtain licenses to use technology or ideas covered by such patents. We do not know whether any necessary
licenses would be available to us on satisfactory terms, if at all. If we cannot obtain these licenses, we could be forced to design around those patents at
additional cost or abandon our products altogether. As a result, our ability to grow our business and compete in the market may be harmed.
We may be subject to damages resulting from claims that we or our employees have wrongfully used or disclosed alleged trade secrets of our
competitors or are in breach of non-competition or non-solicitation agreements with our competitors.
Many of our employees were previously employed at other medical device companies, including our competitors or potential competitors. We could in the future
be subject to claims that we or our employees have inadvertently or otherwise used or disclosed alleged trade secrets or other proprietary information of these
former employers or competitors. In addition, we may in the future be subject to claims that we caused an employee to breach the terms of his or her non-
competition or non-solicitation agreement and litigation may be necessary to defend against these claims. Even if we are successful in defending against these
claims, litigation could result in substantial costs and could be a distraction to management. If our defense to those claims fails, in addition to paying monetary
damages, a court could prohibit us from using technologies or features that are essential to our products or information that is essential to our business
operations, if such technologies, features or information are found to incorporate or be derived from the trade secrets or other proprietary information of the
former employers. An inability to incorporate technologies, features or information that are important or essential to our products or business operations would
have a material adverse effect on our business and may prevent us from selling our products. In addition, we may lose valuable intellectual property rights or
personnel. Any litigation or the threat thereof may adversely affect our ability to hire employees. A loss of key personnel or their work product could hamper or
prevent our ability to commercialize our products and conduct business, which could have an adverse effect on our business, results of operations and financial
condition.
Risks Related to Our Capital Requirements and Finances
We have substantial indebtedness which contain restrictive covenants that may limit our operating flexibility and our failure to comply with the
covenants and payment requirements of our indebtedness may subject us to increased interest expenses, lender consent and amendment costs or
adverse financial consequences.
In March 2019, we borrowed $35.0 million principal amount of debt under a term loan facility ("Solar Debt Facility) with Solar Capital, Ltd. ("Solar") under which
we may borrow an additional $15.0 million upon our request subject to further credit approval. We cannot assure that additional funding will be received. We
used $22.4 million of the proceeds to repay the existing senior secured credit facility. Our outstanding debt is collateralized by substantially all of our assets and
contains customary financial and operating covenants limiting our ability to transfer or dispose of assets, merge with or acquire other companies, make
investments, pay dividends, incur additional indebtedness and liens and conduct transactions with affiliates without Solar's consent. We therefore may not be
able to engage in any of the foregoing transactions until our current debt obligations
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are paid in full or we obtain the consent of the lender. In addition, we are required to prepare our financial statements and receive audits on our annual financial
statements in a timely manner, meet certain financial ratio requirement and pay interest and principal when due. Furthermore, under the Solar Debt Facility our
interest rate is tied to LIBOR and in the event of an increase in the LIBOR rate, we will be required to pay greater interest expenses, which will have an adverse
effect on our income from operations and financial condition.
To the extent that our operating trends do not enable us to meet our financial and restrictive covenant requirements, we are unable to pay interest or principal
when due or we are unable to meet other covenants and requirements contained within our credit agreements, we may default under such agreement. A default
under any such agreements could result in further increases in consent or amendment fees to lender, further increases in interest costs, the imposition of
additional constraints on borrowing by our lender or potentially more serious liquidity constraints and adverse financial consequences, including reductions in the
value of our common stock or the necessity of seeking protection from creditors under bankruptcy laws. To remedy issues we may encounter with meeting our
debt obligations, or for other purposes, we may find it necessary to seek further refinancing of our indebtedness, and may do so with debt instruments that are
more costly than our existing instruments (and which will rank senior to our common shareholders), or we may issue additional securities which may dilute the
ownership interests or value of our existing shareholders.
We cannot assure you that we will be able to generate sufficient cash flows or revenue to meet the financial covenants or pay the principal and interest on our
debt. Furthermore, we cannot assure you that future working capital, borrowings or equity financing will be available to repay or refinance any such debt.
We may need substantial additional funding and may be unable to raise capital when needed, which would force us to delay, reduce, eliminate or
abandon our commercialization efforts or product development programs.
Our ability to continue as a going concern may require us to obtain additional financing to fund our operations. We may need to raise substantial additional
capital to:
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expand the commercialization of our products;
fund our operations and clinical studies;
continue our research and development activities;
support and expand ongoing manufacturing activities;
defend, in litigation or otherwise, any claims that we infringe on third-party patents or other intellectual property rights;
enforce our patent and other intellectual property rights;
address legal or enforcement actions by the FDA or other governmental agencies and remediate underlying problems;
commercialize our new products in development, if any such products receive regulatory clearance or approval for commercial sale; and
acquire companies or products and in-license products or intellectual property.
We believe that our existing cash and cash equivalents, revenue, proceeds from recent sales of common stock, and available debt and equity financing
arrangements will be sufficient to meet our capital requirements and fund our operations at least through the next twelve months. However, we have based these
estimates on assumptions that may prove to be wrong, and we could spend our available financial resources much faster than we currently expect. Any future
funding requirements will depend on many factors, including:
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the scope, rate of progress and cost of our clinical studies;
the cost of our research and development activities;
the cost of filing and prosecuting patent applications and defending and enforcing our patent or other intellectual property rights;
the cost of defending, in litigation or otherwise, any claims that our product infringes third-party patents or other intellectual property rights;
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the cost of defending, in litigation or otherwise, products liability claims;
the cost and timing of additional regulatory clearances or approvals;
the cost and timing of establishing additional sales, marketing and distribution capabilities;
the scope, rate of progress and cost to expand ongoing manufacturing activities;
costs associated with any product recall that may occur;
the effect of competing technological and market developments;
the extent to which we acquire or invest in products, technologies and businesses
the costs of operating as a public company ; and
the ability of third-parties to pay future invoices and obligations.
If we raise additional funds by issuing equity securities, our stockholders may experience dilution. Any future debt financing into which we enter may impose
covenants that restrict our operations, including limitations on our ability to incur liens or additional debt, pay dividends, repurchase our stock, make certain
investments and engage in certain merger, consolidation or asset sale transactions. Any debt financing or additional equity that we raise may contain terms that
are not favorable to us or our stockholders. If we raise additional funds through collaboration and licensing arrangements with third parties, it may be necessary
to relinquish some rights to our technologies or our products, or grant licenses on terms that are not favorable to us. If we are unable to raise adequate funds, we
may have to liquidate some or all of our assets, or delay, reduce the scope of or eliminate some or all of our development programs.
We cannot be certain that additional funding will be available on acceptable terms, if at all. If we do not have, or are not able to obtain, sufficient funds, we may
have to delay development or commercialization of our products or license to third parties the rights to commercialize products or technologies that we would
otherwise seek to commercialize. We also may have to reduce marketing, customer support or other resources devoted to our products or cease operations. Any
of these factors could harm our operating results.
Risks Related to Ownership of Our Common Stock
Our stock price may be volatile, and you may not be able to resell shares of our common stock at or above the price you paid.
The market price of our common stock could be subject to significant fluctuations. Market prices for securities of early-stage medical device, pharmaceutical and
other life sciences companies have historically been particularly volatile. Some of the factors that may cause the market price of our common stock to fluctuate
include:
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a slowdown in the medical device industry or the general economy;
inability to obtain adequate supply of the components for any of our products, or inability to do so at acceptable prices;
performance of third parties on whom we may rely, including for the manufacture of the components for our products, including their ability to
comply with regulatory requirements;
the results of our current and any future clinical trials of our devices;
unanticipated or serious safety concerns related to the use of any of our products;
the entry into, or termination of, key agreements, including key commercial partner agreements;
the initiation of, material developments in or conclusion of litigation to enforce or defend any of our intellectual property rights or defend against
the intellectual property rights of others;
announcements by us, our commercial partners or our competitors of new products or product enhancements, clinical progress or the lack
thereof, significant contracts, commercial relationships or capital commitments;
competition from existing technologies and products or new technologies and products that may emerge;
the loss of key employees;
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changes in estimates or recommendations by securities analysts, if any, who may cover our common stock;
general and industry-specific economic conditions that may affect our research and development expenditures;
the low trading volume and the high proportion of shares held by affiliates;
changes in the structure of health care payment systems and insurance coverage related to our products and procedures that utilize our
products; and
period-to-period fluctuations in our financial results.
Moreover, the stock markets in general have experienced substantial volatility that has often been unrelated to the operating performance of individual
companies. These broad market fluctuations may also adversely affect the trading price of our common stock.
In the past, following periods of volatility in the market price of a company’s securities, stockholders have often instituted class action securities litigation against
those companies. Such litigation, if instituted, could result in substantial costs and diversion of management attention and resources, which could significantly
harm our profitability and reputation.
We will incur costs and demands upon management as a result of complying with the laws and regulations affecting public companies.
We will continue to incur significant legal, accounting and other expenses including costs associated with public company reporting requirements. We will also
incur costs associated with corporate governance requirements, including requirements under the Sarbanes-Oxley Act, as well as new rules implemented by the
SEC and The Nasdaq Stock Market LLC. Our executive officers, service providers and other personnel will need to devote substantial time to these rules and
regulations. These rules and regulations are expected to increase our legal and financial compliance costs and to make some other activities more time-
consuming and costly. These rules and regulations may also make it difficult and expensive for us to obtain directors’ and officers’ liability insurance. As a result,
it may be more difficult for us to attract and retain qualified individuals to serve on our board of directors or as executive officers of the Company, which may
adversely affect investor confidence and could cause our business or stock price to suffer.
Anti-takeover provisions in our charter documents and under Delaware General Corporate Law could make an acquisition of the Company more
difficult and may prevent attempts by our stockholders to replace or remove Company management.
Provisions in our certificate of incorporation and bylaws may delay or prevent an acquisition or a change in management. In addition, because we are
incorporated in Delaware, it is governed by the provisions of Section 203 of the Delaware General Corporate Law, which prohibits stockholders owning in excess
of 15% of our outstanding voting stock from merging or combining with us. Although we believe these provisions collectively will provide for an opportunity to
receive higher bids by requiring potential acquirers to negotiate with our board of directors, they would apply even if the offer may be considered beneficial by
some stockholders. In addition, these provisions may frustrate or prevent any attempts by our stockholders to replace or remove then current management by
making it more difficult for stockholders to replace members of the board of directors, which is responsible for appointing the members of management.
We do not anticipate that we will pay any cash dividends in the foreseeable future.
The current expectation is that we will retain future earnings to fund the development and growth of our business. As a result, capital appreciation, if any, of our
common stock will be your sole source of gain, if any, for the foreseeable future. In addition, our ability to pay dividends is limited by covenants in our credit
agreement. Additionally, we are a holding company, and our ability to pay dividends will be dependent upon our subsidiaries’ ability to make distributions, which
may be restricted by covenants in our credit agreement or any future contractual obligations.
Future sales and issuances of our common stock or other securities may result in significant dilution or could cause the price of our common stock
to decline.
We cannot predict what effect, if any, sales of our shares in the public market or the availability of shares for sale will have on the market price of our common
stock. However, if certain of our existing stockholders sell, or indicate an intention to sell, substantial amounts of our common stock in the public market, the
trading price of our common stock could decline. In addition, shares of common stock that are subject to outstanding options will become eligible for sale in the
public market to the extent permitted by the provisions of various vesting agreements and Rules 144 and 701 under the Securities Act. If these additional shares
are sold, or if it is perceived that they will be sold, in the public market, the trading price of our common stock could decline.
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We also expect that additional capital may be needed in the future to continue our planned operations. To raise capital, we may sell common stock, convertible
securities or other equity securities in one or more transactions at prices and in a manner we determine from time to time. These sales, or the perception in the
market that the holders of a large number of shares intend to sell shares, could reduce the market price of our common stock.
The ownership of our common stock is currently highly concentrated and may prevent you and other stockholders from influencing significant
corporate decisions and may result in conflicts of interest that could cause our stock price to decline.
As of December 31, 2018, our executive officers, directors, holders of 5% or more of our common stock and their respective affiliates beneficially owned a
majority of our outstanding capital stock. As a result, this group of stockholders has the ability to control us through this ownership position. These stockholders
may be able to determine all matters requiring stockholder approval. For example, these stockholders may be able to control elections of directors, amendments
of our organizational documents or approval of any merger, sale of assets or other major corporate transaction. This may prevent or discourage unsolicited
acquisition proposals or offers for our common stock that you may feel are in your best interest as one of our stockholders. The interests of this group of
stockholders may not always coincide with your interests or the interests of other stockholders and they may act in a manner that advances their best interests
and not necessarily those of other stockholders, including seeking a premium value for their common stock, and might affect the prevailing market price for our
common stock.
The limited public float and trading volume for our common stock may have an adverse impact and cause significant fluctuation of market price.
Our common stock is held by a relatively small number of stockholders. Our officers, directors, and members of management acquire stock or have the potential
to own stock through previously granted equity awards. Consequently, our common stock has a relatively small float and low average daily trading volume, which
could affect a stockholder’s ability to sell our stock or the price at which it can be sold. In addition, future sales of substantial amounts of our common stock in the
public market by those larger stockholders, or the perception that these sales could occur, may adversely impact the market price of the stock and our stock
could be difficult for a stockholder to liquidate.
There can be no assurance that an active trading market for our common stock will be sustained in the future. The lack of an active trading market may make it
more difficult for you to sell our shares and could lead to our share price being depressed or more volatile.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2. PROPERTIES
Our principal executive offices are located in an 18,388 square foot facility in Austin, Texas. The term of the lease for our Austin facility extends through
September 30, 2021. Our principal office in Austin houses research and development, sales, marketing, finance and administrative activities. We operate an
approximate 18,200 square foot manufacturing facility in the Coyol Free Trade Zone in Alajuela, Costa Rica. The term of the lease for our Costa Rica facility
extends through October 31, 2021. Additionally, we have a research and development facility in Austin, Texas and a device analysis lab in Carpinteria, California
as well as sales and marketing offices in Australia, Italy, Brazil, and the United Kingdom. We believe that our facilities are currently adequate for our needs.
ITEM 3. LEGAL PROCEEDINGS
From time to time, we are involved in legal proceedings. The results of such legal proceedings and claims cannot be predicted with certainty, and regardless of
the outcome, legal proceedings could have an adverse impact on our business because of defense and settlement costs, diversion of resources and other
factors.
The information set forth under "Litigation" in Note 13 to the Consolidated Financial Statements in Item 8 of this Report is incorporated herein by reference.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
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PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY
SECURITIES
Market Information
Our common stock is listed for trading on the Nasdaq Global Market under the symbol "APEN".
As of February 28, 2019, there were approximately 110 stockholders of record of our common stock. Certain shares are held in "street" name and accordingly,
the number of beneficial owners of such shares is not known or included in the foregoing number.
Dividend Policy
We have never paid or declared any cash dividends on our common stock. We do not anticipate paying any cash dividends on our common stock in the
foreseeable future, and we intend to retain all available funds and any future earnings to fund the development and expansion of our business. In addition, our
ability to pay dividends is limited by covenants in our credit agreement. Any future determination to pay dividends will be at the discretion of our board of directors
and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed
by applicable law and other factors our board of directors deems relevant.
ITEM 6. SELECTED FINANCIAL DATA
This item has been omitted as we qualify as a smaller reporting company.
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This annual report ("Annual Report") contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Act of 1934, as amended (the "Exchange Act"). These statements involve known and unknown risks, uncertainties and other
factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements
expressed or implied by the forward-looking statements. In some cases, you can identify forward-looking statements by terms such as "anticipates," "believes,"
"could," "estimates," "expects," "intends," "may," "plans," "potential," "predicts," "projects," "should," "will," "would," and similar expressions intended to identify
forward-looking statements. Forward-looking statements reflect our current views with respect to future events, are based on assumptions, and are subject to
risks, uncertainties and other important factors. In particular, statements, whether express or implied, concerning future operating results or the ability to generate
sales, income or cash flow are forward-looking statements. They involve risks, uncertainties and assumptions that are beyond our ability to control or predict,
including those discussed in Part II, Item 1A, of this Annual Report. Given these risks, uncertainties, and other important factors, you should not place undue
reliance on these forward-looking statements. Also, forward-looking statements represent our estimates and assumptions only as of the date of this Annual
Report. Except as required by law, we assume no obligation to update any forward-looking statements publicly, or to update the reasons actual results could
differ materially from those anticipated in any forward-looking statements, even if new information becomes available in the future.
The following discussion should be read in conjunction with our consolidated financial statements and related notes contained elsewhere in this Annual Report
on Form 10-K. "Apollo," Orbera®, OverStitch™, the Apollo logo and other trademarks, service marks and trade names of Apollo are registered marks of Apollo
Endosurgery, Inc. in the U.S. and other jurisdictions.
Overview
We are a medical technology company primarily focused on the design, development and commercialization of innovative medical devices to advance
gastrointestinal endoscopy. We develop and distribute devices for minimally invasive gastrointestinal procedures that are used by surgeons and
gastroenterologists for a variety of procedures related to gastrointestinal defect and complication management or bariatric (weight loss) interventional treatment.
Our core products are the OverStitch Endoscopic Suturing System ("ESS") and Intragastric Balloon ("IGB") (most often branded as Orbera). In December 2018,
we divested our Surgical product line.
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We have sales distribution offices in England, Australia, Italy, and Brazil that oversee regional sales and distribution activities outside the U.S., a products
manufacturing facility in Costa Rica and a device analysis lab in California. All other activities are managed and operated from facilities in Austin, Texas.
Divestiture of the Surgical Product Line
On December 17, 2018, we entered into an Asset Purchase Agreement ("Purchase Agreement") with ReShape Lifesciences Inc. pursuant to which, ReShape
acquired from Apollo substantially all of our assets exclusively related to our Surgical product line. In connection with the Purchase Agreement, ReShape agreed
to pay $17.0 million in cash ("Cash Purchase Price"), of which $10.0 million was paid at the closing of the transaction and an additional $2.0 million is payable on
each of the first and second anniversary of the closing date and the remaining $3.0 million is payable on the third anniversary of the closing date. As additional
consideration, we also received from ReShape substantially all of ReShape's assets exclusively related to their intragastric balloon product.
The parties entered into a transition services agreement, supply agreement and distribution agreement pursuant to which, among other things, we will
manufacture the Surgical product for ReShape for up two years, serve as ReShape’s distributor of the Surgical product outside of the U.S. for up to one year and
provide other specified services.
We and ReShape each made customary representations, warranties, covenants and indemnities in the Purchase Agreement. Subject to certain limitations, we
each agreed to indemnify the other party for certain matters, including breaches of representations, warranties and covenants in the Purchase Agreement.
ReShape also granted us a security interest in substantially all of ReShape’s assets as security for the payment and performance when due of all of ReShape’s
obligations under the Purchase Agreement, including their remaining Cash Purchase Price obligations.
Effective December 31, 2018, we discontinued selling ReShape's intragastric balloon system.
In connection with the divestiture, on December 17, 2018, we entered into an Eighth Amendment to the Credit Agreement, originally dated February 27, 2015,
with our lender, Athyrium Opportunities II Acquisition LP, or Athyrium. This amendment, among other things, (i) amends the covenants under our Credit
Agreement with Athyrium to permit the transactions contemplated by the Purchase Agreement; (ii) modifies the mandatory prepayment provisions to require us
to reduce our principal balance outstanding by the $17.0 million cash purchase price when each payment is received, so long as the Credit Agreement remains
outstanding.
Financial Operations Overview
Revenues
Our principal source of revenues has come from sales of our Endo-bariatric products and our Surgical products however, with the divestiture of our Surgical
product line and after completion of our OUS distribution service support pursuant to the distribution services agreement, future sales will come from our Endo-
bariatric products. The majority of our sales come from direct markets where sales are made to the final end customers, typically healthcare providers. In other
markets, we sell our products to distributors who resell our products to end users. Revenues between periods will be impacted by several factors, including
physician procedures and therapy preferences, patient procedures and therapy preferences, other market trends, the stability of the average sales price we
realize on products and changes in foreign exchange rates used to translate foreign currency denominated sales into U.S. dollars. In the U.S., we also offer
Orbera Coach, a digital aftercare support system for Orbera patients.
Cost of Sales
Our ESS products have historically been purchased from third-party manufacturers, and our cost of sales for these products has consisted of this purchase price.
Cost of sales for our IGB and Surgical products includes raw materials, labor, and manufacturing overhead. Since 2017, we have begun to manufacture various
components of the ESS system in order to improve the gross margin profile of this product. Raw materials used in our manufacturing activity are generally not
subject to substantial commodity price volatility, and most of our manufacturing costs are incurred in U.S. dollars. Cost of sales also includes excess and obsolete
inventory charges, royalties, shipping, inspection and related costs incurred in making our products available for sale or use.
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We expect our gross margin will continue to be impacted by the shift in revenue mix from Surgical products, which have historically high gross margins with
decreasing sales, to lower gross margin but high-growth Endo-bariatric products. In addition, manufacturing overhead is a significant portion of our cost of sales
and can impact cost of sales as a percentage of revenue between periods as a result of manufacturing rates and the degree to which manufacturing overhead is
allocated to production during the period. Comparability of cost of sales between periods could also be affected by inventory valuation allowances related to
obsolete or excess inventory. We expect to improve gross margins as we complete certain identified Endo-bariatric product gross margin improvement projects
and improve capacity utilization of our manufacturing facility.
Sales and Marketing Expense
Sales and marketing expense primarily consists of salaries, commissions, benefits and other related costs, including stock-based compensation, for personnel
employed in our sales, marketing and medical education departments. In addition, our sales and marketing expense includes costs associated with advertising,
physician training, industry events and other promotional activities.
General and Administrative Expense
General and administrative expense primarily consists of salaries, benefits and other related costs, including stock-based compensation, for personnel
employed in corporate management, finance, legal, compliance, information technology and human resource departments. General and administrative expense
also includes facilities cost, insurance, audit fees, legal fees, bad debt expense and costs related to the development and protection of our intellectual property
portfolio.
Research and Development Expense
Research and development expense includes product development, clinical trial costs, quality and regulatory compliance, consulting services, outside
prototyping services, outside research activities, materials, depreciation and other costs associated with development of our products. Research and
development expense also includes compensation and stock-based compensation expense for personnel dedicated to these activities. Research and
development expense may fluctuate between periods dependent on the activity in the period associated with our various product development and clinical
obligations.
Amortization of Intangible Assets
Definite-lived intangible assets primarily consists of customer relationships, product technology, trade names, patents and trademarks, and capitalized software.
Intangible assets are amortized over the asset's estimated useful life.
Critical Accounting Policies and Estimates
Our management's discussion and analysis of our financial condition and results of operations is based on our consolidated financial statements, which
management has prepared in accordance with existing U.S. generally accepted accounting principles, or GAAP. The preparation of these financial statements
requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and
liabilities at the date of the financial statements, as well as the reported revenue and expenses during the reporting periods. Management evaluates estimates
and judgments on an ongoing basis. Estimates relate to aspects of our revenue recognition, going concern, financial projections, useful lives with respect to
intangible and long-lived assets, goodwill impairment, allowance for doubtful accounts, inventory valuation, stock compensation, deferred tax asset valuation and
long-lived assets. We base our estimates on historical experience and on various other factors that management believes are reasonable under the
circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other
sources. Our actual results may differ from these estimates under different assumptions or conditions.
The critical accounting policies addressed below reflect our most significant judgments and estimates used in the preparation of our consolidated financial
statements.
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Revenue Recognition
Our principal source of revenues is from the sale of our products to hospitals, physician practices and distributors. We utilize a network of employee sales
representatives in the U.S. and a combination of employee sales representatives, independent agents and distributors in markets outside the U.S. ("OUS"). The
Company adopted the provisions of ASU 2014-09, Revenue from Contracts with Customers on January 1, 2018 as discussed in Note 2 to the Consolidated
Financial Statements. Revenue is recognized when control of the promised goods is transferred to our customers, in an amount that reflects the consideration
we expect to be entitled to in an exchange for those goods. Generally, these conditions are met upon product shipment. Customers generally have the right to
return or exchange products purchased from us for up to thirty days from the date of product shipment. Distributors, who resell the products to their customers,
take title to products and assume all risks of ownership at the time of shipment and are obligated to pay within specified terms regardless of when, if ever, they
sell their products. At the end of each period, we determine the extent to which our revenues need to be reduced to account for expected rebates, returns and
exchanges. We classify any shipping and handling cost billed to customers as revenue and the related expenses as cost of sales.
Accounts Receivable and Allowance for Doubtful Accounts
Accounts receivable are at the invoiced amount less an allowance for doubtful accounts. On a regular basis, we evaluate accounts receivable and estimate an
allowance for doubtful accounts, as needed, based on various factors such as customers' current credit conditions, length of time past due and the general
economy as a whole. We write off receivables against the allowance when they are determined to be uncollectible.
Inventory
Inventory is stated at the lower of cost or net realizable value, net of any allowance for unsalable inventory. Charges for excess and obsolete inventory are
based on specific identification of excess and obsolete inventory items and an analysis of inventory items approaching expiration date. We evaluate the carrying
value of inventory in relation to the estimated forecast of product demand. A significant decrease in demand could result in an increase in the amount of excess
inventory quantities on hand. When quantities on hand exceed estimated sales forecasts, we record estimated excess and obsolescence charges to cost of
sales. Our inventories are stated using the weighted average cost approach, which approximates actual costs.
Intangible and Long-lived Assets
Definite-lived intangible assets consist of customer relationships, product technology, trade names, patents and trademarks, and capitalized software which are
amortized over their estimated useful lives.
Long-lived assets, including definite-lived intangible assets, are monitored and reviewed for impairment whenever events or circumstances indicate that the
carrying value of any such asset may not be recoverable. The determination of recoverability is based on an estimate of undiscounted cash flows expected to
result from the use of an asset and its eventual disposal. The estimate of undiscounted cash flows is based upon, among other things, certain assumptions
about expected future operating performance. Our estimates of undiscounted cash flows may differ from actual cash flows. If the sum of the undiscounted cash
flows is less than the carrying value of the asset, an impairment charge is recognized, measured as the amount by which the carrying value exceeds the fair
value of the asset.
Income Taxes
We account for deferred income taxes using the asset and liability method. Under this method, deferred income taxes arise from temporary differences between
the tax basis of assets and liabilities and their reported amounts in the financial statements, which will result in taxable or deductible amounts in the future.
Temporary differences are then measured using the enacted tax rates and laws. Valuation allowances are established, when necessary, to reduce deferred tax
assets to the amount that is more-likely than-not to be realized. Determining the appropriate amount of valuation allowance requires management to exercise
judgment about future operations.
In the ordinary course of business, there are many transactions for which the ultimate tax outcome is uncertain. We regularly assess uncertain tax positions in
each of the tax jurisdictions in which we have operations and account for the related consolidated financial statement implications. The amount of unrecognized
tax benefits is adjusted when information becomes available or when an event occurs indicating a change is appropriate. We include interest and penalties
related to our uncertain tax positions as part of income tax expense.
Non-GAAP Financial Measures
As a supplement to our financial results we are providing a non-GAAP financial measure, adjusted total revenues which exclude U.S. Orbera starter kit sales.
This supplemental measure of our performance is not required by, and it not determined in accordance with GAAP.
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Adjusted Total Revenues, Excluding U.S. Orbera Starter Kit Sales
Adjusted total revenues, excluding U.S. Orbera starter kit sales is our GAAP total revenues excluding U.S. Orbera starter kit sales. We believe the non-GAAP
financial measure included herein is helpful in understanding our current financial performance. We use this supplemental non-GAAP financial measure
internally to understand, manage and evaluate our business, and make operating decisions. We believe that making non-GAAP financial information available to
investors, in addition to GAAP financial information, may facilitate more consistent comparisons between our performance over time with the performance of
other companies in the medical device industry, which may use similar financial measures to supplement their GAAP financial information. However, our non-
GAAP financial measure is not meant to be considered in isolation or as a substitute for the comparable GAAP metric. This measure should only be read in
conjunction with our consolidated financial statements prepared in accordance with GAAP. Reconciliations for this non-GAAP financial measure to its most
directly comparable GAAP financial measure is provided in this Annual Report on Form 10-K.
Results of Operations
Comparison of the Years Ended December 31, 2018 and 2017
Revenues
Cost of sales
Gross margin
Operating expenses:
Sales and marketing
General and administrative
Research and development
Loss on divestiture
Amortization of intangible assets
Total operating expenses
Loss from operations
Interest expense, net
Other expense
Net loss before income taxes
Income tax expense
Net loss
Revenues
Year Ended December 31, 2018
Year Ended December 31, 2017
Dollars
% of Revenues
Dollars
% of Revenues
$
$
60,854
27,660
33,194
32,831
13,436
12,176
7,770
7,074
73,287
(40,093)
4,063
1,440
(45,596)
191
(45,787)
100.0 % $
45.5 %
54.5 %
54.0 %
22.1 %
20.0 %
12.8 %
11.6 %
120.5 %
(66.0) %
6.7 %
2.4 %
(75.1) %
0.3 %
(75.4) % $
64,310
24,578
39,732
32,910
13,722
8,299
—
7,240
62,171
(22,439)
4,508
41
(26,988)
304
(27,292)
100.0 %
38.2 %
61.8 %
51.2 %
21.3 %
12.9 %
— %
11.3 %
96.7 %
(34.9) %
7.0 %
0.1 %
(42.0) %
0.5 %
(42.5) %
Product sales by product group and geographic market for the periods shown were as follows:
Year Ended December 31, 2018
Year Ended December 31, 2017
% Increase / (Decrease)
U.S.
OUS
Total
Revenues
U.S.
OUS
Total
Revenues
U.S.
OUS
Total
Revenues
ESS
IGB
Total Endo-bariatric
Surgical
Other
$
11,016 $
12,364 $
23,380 $
8,019 $
8,462 $
5,400
16,416
10,795
995
12,339
24,703
7,913
32
17,739
41,119
18,708
1,027
6,301
14,320
17,366
766
13,141
21,603
10,227
28
16,481
19,442
35,923
27,593
794
37.4 %
(14.3)%
14.6 %
(37.8)%
29.9 %
Total revenues
$
28,206 $
32,648 $
60,854 $
32,452 $
31,858 $
64,310
(13.1)%
46.1 %
(6.1)%
14.3 %
(22.6)%
14.3 %
2.5 %
41.9 %
(8.8)%
14.5 %
(32.2)%
29.3 %
(5.4)%
% Total revenues
46.4
%
53.6
%
50.5
%
49.5
%
____________________________________
Endoscopic Suturing System ("ESS") and Intragastric Balloon ("IGB")
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Total revenues in 2018 were $60.9 million, compared to $64.3 million in 2017, a decrease of 5.4%. Foreign currency fluctuations increased total revenues $0.3
million in 2018. Direct market sales accounted for approximately 87% of total revenues for both periods presented.
ESS product sales increased 41.9% or $6.9 million in 2018 when compared to 2017. U.S. ESS product sales increased 37.4% or $3.0 million, compared
to 2017 due to continued new user adoption and greater product utilization in existing accounts. OUS ESS product sales increased 46.1% or $3.9 million due to
growth in Europe.
IGB product sales decreased $1.7 million or 8.8% in 2018 compared to 2017. In the U.S., IGB product sales decreased $0.9 million in 2018 when compared to
2017 primarily due to decreased consumer demand after the June 2018 FDA letter to Health Care Professionals. OUS IGB product sales
decreased $0.8 million in 2018 when compared to 2017 due to lower sales in Brazil and our distributor markets which offset growth of 14.6% in Europe due to
higher unit sales and average selling prices of Orbera365 in Europe.
Total Endo-bariatric product sales increased 14.5% to $41.1 million in 2018, compared to $35.9 million in 2017 comprising 67.6% of total revenues in 2018
compared to 55.9% in 2017.
Total Surgical product sales for 2018 were $18.7 million, a decrease of 32.2%, compared to $27.6 million in 2017. The decline was primarily due to reductions in
gastric banding procedures being performed. Surgical product sales in the U.S., decreased 37.8% to $10.8 million in 2018 compared to $17.4 million for 2017
and OUS Surgical sales decreased 22.6% to $7.9 million in 2018 compared to $10.2 million in 2017.
Cost of Sales
Costs of product sales for the periods shown were as follow:
Materials, labor and purchased goods
Overhead
Change in inventory reserve
Other indirect costs
Total cost of sales
Gross Margin
Year Ended December 31, 2018
Year Ended December 31, 2017
Dollars
% Total Revenues
Dollars
% Total Revenues
18,009
6,670
387
2,594
27,660
$
29.6 % $
11.0 %
0.6 %
4.3 %
45.5 % $
15,896
5,416
692
2,574
24,578
24.7 %
8.4 %
1.1 %
4.0 %
38.2 %
Gross margin as a percentage of revenues was 54.5% for 2018 compared to 61.8% for 2017, respectively. The decline in gross margin is primarily due to a shift
in our product sales mix from higher margin Surgical products to Endo-bariatric products that realize lower relative gross margins. Additionally, finished goods
inventory was higher at the end of 2017 as we built up inventory levels to protect against the risk of supply disruption while we completed gross margin
improvement projects during 2018. With the completion of these projects in 2018, our finished goods inventory at the end of 2018 has been substantially
reduced which resulted in a greater proportion of our manufacturing overhead getting charged to cost of sales during 2018 compared to 2017. Although overhead
charged to cost of sales is higher in 2018 for the above reason compared to 2017, our overhead spend is materially unchanged between the years.
Operating Expenses
Sales and Marketing Expense. Sales and marketing expense of $32.8 million for 2018 decreased $0.1 million from 2017.
General and Administrative Expense. General and administrative expense decreased $0.3 million in 2018 as compared to 2017 primarily due to higher costs
incurred to meet our public company filing requirements in the previous year.
Research and Development Expense. Research and development expense increased $3.9 million in 2018 compared to 2017 primarily due to higher clinical trial
activities associated with our Endo-bariatric products and higher costs for new product development and product margin improvement projects.
Loss on Divestiture. Loss on divestiture of $7.8 million was due to the divestiture of our Surgical product line in December 2018.
Amortization of Intangible Assets. Amortization of intangible assets decreased $0.2 million in 2018 when compared to 2017 due to the divestiture of Surgical
related intangibles.
Loss from Operations.
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Loss from operations in 2018 was $40.1 million compared to $22.4 million in 2017. The increased loss from operations was primarily due to lower gross
margins, higher research and development expenses, and the loss on divestiture.
Other Expenses
Interest Expense. Interest expense decreased $0.4 million, or 9.9%, in 2018 compared to 2017 due to principal payments on our senior secured credit facility.
Other Expense. Other expense primarily consists of realized and unrealized foreign exchange gains or losses. The increase of $1.4 million in 2018 compared to
2017 was primarily caused by the movement in exchange rates on short-term intercompany loans denominated in U.S dollars payable by our foreign
subsidiaries. During 2018, unrealized exchange rate losses on these intercompany loans were $1.2 million compared to unrealized gains of $0.2 million in 2017.
Income Tax Expense. Income tax expense was $0.2 million in 2018 compared to $0.3 million in 2017. We established a valuation allowance equal to the total
U.S. net deferred tax assets due to our lack of earnings history. Tax expense in 2018 and 2017 relates to foreign income taxes on income generated in our OUS
tax jurisdictions.
Comparison of the Years Ended December 31, 2017 and 2016
Revenues
Cost of sales
Gross margin
Operating expenses:
Sales and marketing
General and administrative
Research and development
Amortization of intangible assets
Total operating expenses
Loss from operations
Interest expense, net
Other expense
Net loss before income taxes
Income tax expense
Net loss
Product Sales
Year Ended December 31, 2017
Year Ended December 31, 2016
Dollars
% of Revenues
Dollars
% of Revenues
$
$
64,310
24,578
39,732
32,910
13,722
8,299
7,240
62,171
(22,439)
4,508
41
(26,988)
304
(27,292)
100.0 % $
38.2 %
61.8 %
51.2 %
21.3 %
12.9 %
11.3 %
96.7 %
(34.9) %
7.0 %
0.1 %
(42.0) %
0.5 %
(42.5) % $
64,650
25,255
39,395
31,533
13,625
7,805
7,193
60,156
(20,761)
18,168
1,851
(40,780)
387
(41,167)
100.0 %
39.1 %
60.9 %
48.8 %
21.1 %
12.1 %
11.1 %
93.1 %
(32.2) %
28.1 %
2.9 %
(63.2) %
0.6 %
(63.8) %
Product sales by product group and geographic market for the periods shown were as follows:
Year Ended December 31, 2017
Year Ended Year Ended December 31, 2016
U.S.
OUS
Total
Revenues
% Total
Revenues
U.S.
OUS
Total
Revenues
% Total
Revenues
ESS
$
8,019 $
8,462 $
16,481
25.6 % $
6,184 $
3,004 $
9,188
14.2 %
IGB, excluding U.S. Orbera starter
kit sales
U.S. Orbera starter kit sales
Endo-bariatric
Surgical
Other
Total revenues
% Total revenues
________________
5,439
862
14,320
17,366
766
13,141
—
21,603
10,227
28
18,580
862
35,923
27,593
794
29.0 %
1.3 %
55.9 %
42.9 %
1.2 %
4,991
4,350
15,525
21,560
452
13,379
—
16,383
10,706
24
18,370
4,350
31,908
32,266
476
28.4 %
6.7 %
49.3 %
49.9 %
0.8 %
$
32,452 $
31,858 $
64,310
100.0 % $
37,537 $
27,113 $
64,650
100.0 %
50.5
%
49.5
%
58.1
%
41.9
%
Endoscopic Suturing System ("ESS") and Intragastric Balloon ("IGB")
Reconciliation of GAAP to Non-GAAP Financial Information
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The following table reconciles the most directly comparable GAAP financial measure to the non-GAAP financial measure discussed above.
Total revenues
Less: U.S. Orbera starter kit sales
Adjusted total revenues, excluding U.S. Orbera starter kit sales
Year Ended December 31,
2017
2016
% Increase/ (Decrease)
$
$
64,310 $
(862)
63,448 $
64,650
(4,350)
60,300
0.5 %
(80.2) %
5.2 %
Total revenues in 2017 were $64.3 million, compared to $64.7 million in 2016, a decrease of less than 0.5%. Adjusted total revenues, excluding U.S. Orbera
starter kit sales, increased 5.2%.
Total Endo-bariatric product sales increased 12.6% to $35.9 million in 2017, compared to $31.9 million in 2016 comprising 55.9% of total revenues in 2017
compared to 49.4% in 2016. Excluding U.S. Orbera starter kit sales, total Endo-bariatric sales increased 27.2% for the year. In markets outside the U.S. ("OUS"),
Endo-bariatric product sales increased 31.9% or $5.2 million in 2017 compared to 2016 primarily due to higher OverStitch sales in our direct markets. OUS direct
market sales were 68.5% of total OUS Endo-bariatric product sales in 2017 compared to 65.1% in 2016. Excluding U.S. Orbera starter kit sales, U.S. Endo-
bariatric product sales increased 20.4% or $2.3 million in 2017 primarily due to higher OverStitch product sales and higher Orbera product sales in the first half
of 2017.
Total Surgical product sales for 2017 were $27.6 million, a decrease of 14.5%, compared to $32.3 million in 2016. The decline was primarily due to reductions in
gastric banding procedures being performed in the U.S. Total OUS Surgical sales decreased 4.5% to $10.2 million for 2017 compared to $10.7 million for 2016.
In the U.S. Surgical sales decreased 19.5% to $17.4 million in 2017 compared to $21.6 million for 2016.
Cost of Sales
Cost of product sales for the periods shown were as follows:
Materials, labor and purchased goods
Start-up costs
Overhead
Change in inventory reserve
Other indirect costs
Total cost of sales
Gross Margin
Year ended December 31, 2017
Year ended December 31, 2016
Dollars
% Total Revenues
Dollars
% Total Revenues
$
$
15,896
—
5,416
692
2,574
24,578
24.7 % $
— %
8.4 %
1.1 %
4.0 %
38.2 % $
14,184
3,384
1,918
3,750
2,019
25,255
22.0 %
5.2 %
3.0 %
5.8 %
3.1 %
39.1 %
Gross margin as a percentage of revenues was 61.8% for 2017 compared to 60.9% for 2016, respectively. Cost of sales included inventory impairment charges
of $0.7 million and $3.8 million in 2017 and 2016, respectively. In 2016, we recorded an inventory impairment charge related to expiring finished good inventory
and excess raw materials transferred from Allergan as required under the transition services agreement. Excluding inventory impairment charges, gross margin
was 62.9% for 2017 and 66.7% for 2016. This decline in gross margin, excluding the impact of inventory impairment charges, is due to the ongoing shift in our
product sales mix from higher margin Surgical products to Endo-bariatric products that realize lower relative gross margins. Additionally, higher shipping and
warehousing costs and an increased mix of Apollo manufactured products sold, which currently provide lower gross margin due to economies of scale,
contributed to the reduction in gross margin. The mix of Apollo manufactured products sold has increased as we deplete the buffer inventory we purchased as
part of the planned transition from Allergan to Apollo.
Operating Expenses
Sales and Marketing Expense. Sales and marketing expense increased $1.4 million to 51.2% of total revenues in 2017 from 48.8% in 2016 primarily due to
higher incentive compensation, Orbera consumer marketing campaigns, and OverStitch physician training program costs.
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General and Administrative Expense. General and administrative expense was essentially flat in 2017 as compared to 2016 as higher costs incurred to meet our
public company filing requirements offset the transactions costs associated with the Lpath merger in 2016.
Research and Development Expense. Research and development expense increased $0.5 million, or 6.3%, in 2017 compared to 2016 primarily due to higher
costs for new product development.
Interest Expense. Interest expense decreased $13.7 million, or 75.2%, in 2017 compared to 2016 primarily due to the elimination of non-cash interest associated
with the convertible notes that converted into common stock in December 2016, including $8.7 million related to the contingent beneficial conversion features.
Cash interest on our senior secured credit facility decreased $2.0 million for the full year after principal reductions of $11.0 million in the fourth quarter of 2016
and $7.0 million in the first quarter of 2017.
Other Expense. Other expense primarily consists of realized and unrealized foreign exchange gains or losses. The decrease in other expense of $1.8 million,
or 97.8%, in 2017 compared to 2016 was primarily caused by the movement in exchange rates on short-term intercompany loans denominated in U.S. dollars
payable by our foreign subsidiaries. During 2017, unrealized exchange rate gains on these intercompany loans were $0.2 million compared to unrealized losses
of $1.3 million in 2016.
Income Tax Expense. Income tax expense was $0.3 million in 2017 compared to $0.4 million in 2016. We established a valuation allowance equal to the total
U.S. net deferred tax assets due to our lack of earnings history. Tax expense in 2017 and 2016 relates to foreign income taxes on income generated in our OUS
tax jurisdictions.
Liquidity and Capital Resources
We have experienced operating losses since inception and occasional debt covenant violations and have an accumulated deficit of $222.8 million as of
December 31, 2018. To date, we have funded our operating losses and acquisitions through equity offerings and the issuance of debt instruments. Our ability to
fund future operations and meet debt covenant requirements will depend upon our level of future operating cash flow and our ability to access additional funding
through either equity offerings, issuances of debt instruments or both. Management believes its existing cash and cash equivalents and product revenues, along
with the additional cash received with the refinancing, will be sufficient to meet liquidity and capital requirements for at least the next twelve months, although
there can be no assurances that the Company will be able to do so. The Company periodically evaluates its liquidity requirements, alternative uses of capital,
capital needs and available resources. As a result of this process, the Company has in the past, and may in the future, explore alternatives to finance its
business plan, including, but not limited to, a public offering of its common stock, private equity or debt financings, reduction of planned expenditures, or other
sources.
In July 2017, the Company completed a public offering selling 6,542,453 shares at a price of $5.50 per share, including 853,363 shares sold to the underwriters
upon the full exercise of their option to purchase additional shares, before the underwriting discount. The public offering generated net proceeds of
approximately $33,584, after deducting the underwriting discount and related offering expenses.
In December 2017, we filed a shelf registration statement on Form S-3 with the SEC, which permits the offering, issuance and sale by us of up to $50.0 million
of our common stock. In December 2017, we also entered into a sales agreement with Cantor Fitzgerald & Co. for the sale and issuance of shares of our
common stock of up to $16.0 million from time to time in an "at-the-market" program.
In June 2018, we completed a public offering selling 4,309,090 shares of common stock at a price to the public of $5.50 per share, including 562,055 shares
pursuant to the exercise in full of the underwriters' option to purchase additional shares of common stock resulting in net proceeds of approximately $21.9
million, after deducting underwriting discounts and expenses. In connection with this transaction, the December 2017 "at-the-market" program was terminated
but the sales agreement remains in effect.
In December 2018, we divested our Surgical Product line and received $10.0 million in cash on closing which was used to repay debt principal outstanding.
In March 2019, we entered into a Term Loan Facility with Solar Capital Partners to borrow $35.0 million of which we used $22.4 million of the proceeds to repay
our senior secured credit facility (see Note 19).
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Senior Secured Credit Facility
In February 2015, we entered into a senior secured credit facility (the "Credit Agreement") with Athyrium Opportunities II Acquisition LP ("Athyrium") to borrow
$50.0 million which is due in February 2020. The facility bears interest at 10.5% annually including 3.5% payment-in-kind during the first year. An additional 2%
of the outstanding amount will be due upon prepayment or repayment of the loan in full. We used the proceeds of this facility to refinance existing indebtedness
incurred as part of an asset acquisition. This facility includes covenants and terms that place certain restrictions on our ability to incur additional indebtedness,
incur additional liens, make investments, effect mergers, declare or pay dividends, sell assets, engage in transactions with affiliates or make capital
expenditures. The facility also includes a consolidated debt to revenue ratio. In the past, we have received waivers or amendments from the lender with respect
to noncompliance with these financial covenants. If we are not able to maintain compliance with our ongoing financial covenants or are otherwise unable to
negotiate a waiver or amendment to the covenant requirements, the repayment of the facility could be accelerated at the lender's discretion.
During the year ended December 31, 2018, we prepaid $12.5 million of principal outstanding under the Credit Agreement, of which $2.5 million related to our
waivers from Athyrium for noncompliance with our second and third quarter debt-to-revenue ratio requirement. In the fourth quarter, as a result of the divestiture
of the Surgical product line, we paid an additional $10.0 million of the principal outstanding.
In March 2019, we entered into a Term Loan Facility with Solar Capital to borrow $35.0 million, of which we used $22.4 million of the proceeds to repay our
Senior Secured Credit Facility (see Note 19).
Cash Flows
The following table provides information regarding our cash flows for the years ended December 31, 2018 and 2017:
Net cash used in operating activities
Net cash provided by/(used in) investing activities
Net cash provided by financing activities
Effect of exchange rate changes on cash
Net change in cash, cash equivalents and restricted cash
Operating Activities
2018
2017
$
$
(23,119) $
7,119
9,695
(106)
(6,411) $
(13,320)
(2,137)
26,703
131
11,377
Cash used in operating activities of $23.1 million for 2018 was primarily the result of a net loss of $45.8 million net of non-cash charges of $21.0 million primarily
related to depreciation, amortization, loss on divestiture of the Surgical product line, stock based compensation, and foreign exchange on intercompany loans.
Net loss included $3.2 million of additional costs associated with clinical trial activities for our Endo-bariatric products. In addition, operating assets and liabilities
provided cash of $1.6 million primarily due to reduction in inventory levels as we reduced our buffer stock in connection with completion of gross margin projects.
The increase in cash for operating activities of $9.8 million primarily relates to the change in net loss, net of non-cash charges, as a result of lower gross margin
and higher research and development expense each as explained above in our results of operations.
Cash used in operating activities of $13.3 million for 2017 was primarily the result of a net loss of $27.3 million net of non-cash charges of $12.1 million primarily
related to depreciation, amortization, non-cash interest expense, inventory impairment and stock based compensation. Net loss included $2.8 million of costs
associated with initial regulatory filings and corporate governance activities required of a new public company. Additionally, cash provided by operating assets
and liabilities of $1.9 million related to the build-up of inventory supply in order to meet growing demand for our Endo-bariatric products offset by an increase in
payables associated with the inventory build-up.
Investing Activities
Cash provided by investing activities of $7.1 million for 2018 was primarily related to the $10.0 million closing cash payment received upon the sale of the
Surgical product line offset by $2.9 million of purchases of property and equipment associated with our manufacturing facility as we expand manufacturing
capability and ongoing investments in our intellectual property portfolio.
Cash used for investing activities of $2.1 million for 2017 was primarily related to purchases of property and equipment associated with our manufacturing facility
as we expand manufacturing capability and ongoing investments in our intellectual property portfolio.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Financing Activities
Cash provided by financing activities of $9.7 million for 2018 primarily relates to the $21.9 million in net proceeds from the June 2018 public offering offset by
payments of $12.5 million in principal on the senior secured credit facility.
Cash provided by financing activities of $26.7 million for 2017 primarily relates to the $33.6 million in net proceeds from the July 2017 public offering of
6,542,453 shares of common stock at a price of $5.50 per share. The increase in cash was offset by a payment of $7.0 million in principal on the senior secured
credit facility.
Future Funding Requirements
As of December 31, 2018, we had cash, cash equivalents and restricted cash balances totaling $25.0 million. We believe our existing cash and cash
equivalents, product revenues, our current shelf and the public markets or cost reduction actions will be sufficient to meet our liquidity and capital requirements
for at least the next twelve months.
In December 2017, we filed a shelf registration statement to sell up to $50.0 million of our common stock at a future date. In June 2018, we completed a public
offering that generated $23.7 million in gross proceeds.
Any future capital requirements will depend on many factors including market acceptance of our products, the cost of our research and development activities,
the cost and timing of additional regulatory clearances or approvals, the cost and timing of identified gross margin improvement projects, the cost and timing of
clinical programs, the ability to maintain covenant compliance of our lending facility, and the costs of establishing additional sales, marketing, distribution and
manufacturing capabilities. We may be required to seek additional equity or debt financing. In the event that additional financing is required from outside sources,
we may not be able to raise it on terms acceptable to us or at all. If we are unable to raise additional capital when desired, our business, operating results and
financial condition could be adversely affected.
Off-balance Sheet Arrangements
We do not have any off-balance sheet arrangements as defined by rules enacted by the SEC and accordingly, no such arrangements are likely to have a current
or future effect on our financial position.
Recent Accounting Pronouncements
See Note 2(s) to the Consolidated Financial Statements in Item 8 of this Report for a discussion of recently enacted accounting pronouncements.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
This item has been omitted as we qualify as a smaller reporting company.
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ITEM 8. FINANCIAL STATEMENTS
APOLLO ENDOSURGERY, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations and Comprehensive Loss
Consolidated Statements of Changes in Redeemable Preferred Stock and Stockholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Page
49
52
53
54
55
55
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors
Apollo Endosurgery, Inc:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Apollo Endosurgery, Inc. and subsidiaries (the “Company”) as of December 31, 2018 and
2017, the related consolidated statements of operations and comprehensive loss, changes in stockholders’ equity, and cash flows for each of the years then
ended, and the related notes (collectively, the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all
material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of its operations and its cash flows for each of the
years then ended, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the Company’s internal
control over financial reporting as of December 31, 2018, based on criteria established in Internal Control – Integrated Framework (2013) issued by the
Committee of Sponsoring Organizations of the Treadway Commission, and our report dated March 18, 2019 expressed an adverse opinion on the effectiveness
of the Company’s internal control over financial reporting.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the
Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing
procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that
respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial
statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall
presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ KPMG LLP
We have served as the Company’s auditor since 2014.
Austin, Texas
March 18, 2019
49
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors
Apollo Endosurgery, Inc.:
Opinion on Internal Control Over Financial Reporting
We have audited Apollo Endosurgery, Inc. and subsidiaries’ (the “Company”) internal control over financial reporting as of December 31, 2018, based on criteria
established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. In our
opinion, because of the effect of the material weakness, described below, on the achievement of the objectives of the control criteria, the Company has not
maintained effective internal control over financial reporting as of December 31, 2018, based on criteria established in Internal Control – Integrated Framework
(2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance
sheets of the Company as of December 31, 2018 and 2017, the related consolidated statements of operations and comprehensive loss, changes in
stockholders’ equity, and cash flows for each of the years then ended, and the related notes (collectively, the “consolidated financial statements”), and our report
dated March 18, 2019 expressed an unqualified opinion on those consolidated financial statements.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a
material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis. A material weakness has
been identified and included in management’s assessment related to the transition in-house of the sales order to cash process (which includes revenue and
accounts receivable) from a third-party service provider, where the Company’s risk assessment was not sufficient, and therefore ineffective, to ensure controls
were designed and implemented to respond to the risks in the transition and sufficient resources were not available to implement the transition in the requisite
timeframe. Additionally, the communication of objectives and responsibilities for internal controls related to the transition was insufficient, and therefore
ineffective. As a result, we identified control deficiencies over the verification of sales orders including price change approvals, the approval of credit memos and
the verification of the application of cash to individual customer account balances.
The material weakness was considered in determining the nature, timing, and extent of audit tests applied in our audit of the 2018 consolidated financial
statements, and this report does not affect our report on those consolidated financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of
internal control over financial reporting, included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Our responsibility is to
express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB
and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of
the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit of internal control over financial
reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and
evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we
considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
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A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial
reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation
of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in
accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate.
Disclaimer on Additional Information in Management’s Report
We do not express an opinion or any other form of assurance on management’s statements, included in the accompanying Management’s Report on Internal
Control Over Financial Reporting, referring to corrective actions taken after December 31, 2018, relative to the aforementioned material weakness in internal
control over financial reporting.
/s/ KPMG LLP
We have served as the Company’s auditor since 2014.
Austin, Texas
March 18, 2019
51
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
2018
2017
$
23,996 $
11,391
9,932
2,801
48,120
1,011
5,897
5,290
9,859
4,291
30,513
11,729
14,343
1,015
57,600
905
6,885
6,828
36,421
422
74,468 $
109,061
$
$
15,292 $
9,156
24,448
21,190
45,638
18,327
7,500
25,827
33,321
59,148
17
225,122
1,795
(177,021)
49,913
109,061
APOLLO ENDOSURGERY, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
December 31, 2018 and 2017
(In thousands, except for share data)
Assets
Current assets:
Cash and cash equivalents
Accounts receivable, net of allowance for doubtful accounts of $559 and $452, respectively
Inventory, net
Prepaid expenses and other current assets
Total current assets
Restricted cash
Property and equipment, net of accumulated depreciation of $6,692 and $6,658, respectively
Goodwill
Intangible assets, net of accumulated amortization of $9,455 and $28,415, respectively
Other assets
Total assets
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable
Accrued expenses
Total current liabilities
Long-term debt
Total liabilities
Commitments and contingencies
Stockholders' equity:
Common stock; $0.001 par value; 100,000,000 shares authorized; 21,899,522 and 17,291,209 shares issued and outstanding
at December 31, 2018 and 2017, respectively
$
22 $
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficit
Total stockholders' equity
Total liabilities and stockholders' equity
249,115
2,501
(222,808)
28,830
$
74,468 $
See accompanying notes to the consolidated financial statements.
52
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
APOLLO ENDOSURGERY, INC. AND SUBSIDIARIES
Consolidated Statements of Operations and Comprehensive Loss
Years Ended December 31, 2018 and 2017
(In thousands, except for share data)
Revenues
Cost of sales
Gross margin
Operating expenses:
Sales and marketing
General and administrative
Research and development
Loss on divestiture
Amortization of intangible assets
Total operating expenses
Loss from operations
Other expenses:
Interest expense, net
Other expense
Net loss before income taxes
Income tax expense
Net loss
Other comprehensive income:
Foreign currency translation
Comprehensive loss
Net loss per share, basic and diluted
Shares used in computing net loss per share, basic and diluted
$
$
$
2018
2017
60,854 $
27,660
33,194
32,831
13,436
12,176
7,770
7,074
73,287
(40,093)
4,063
1,440
(45,596)
191
(45,787)
706
(45,081) $
(2.31) $
64,310
24,578
39,732
32,910
13,722
8,299
—
7,240
62,171
(22,439)
4,508
41
(26,988)
304
(27,292)
324
(26,968)
(2.01)
19,789,867
13,565,781
See accompanying notes to the consolidated financial statements.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
APOLLO ENDOSURGERY, INC. AND SUBSIDIARIES
Consolidated Statements of Changes in Stockholders’ Equity
Years Ended December 31, 2018 and 2017
(In thousands, except for share data)
Balances at December 31, 2016
Exercise of common stock options
Issuance of common stock, net of
issuance costs of $2,400
Stock based compensation
Foreign currency translation
Net loss
Balances at December 31, 2017
Exercise of common stock options
Issuance of restricted stock units
Issuance of common stock, net of issuance
costs of $1,843
Stock based compensation
Foreign currency translation
Net loss
Common Stock
Amount
Additional
Paid-in
Capital
Accumulated Other
Comprehensive
Income
Accumulated
Deficit
11 $
190,664 $
1,471 $
(149,729) $
Shares
10,688,992 $
59,764
6,542,453
—
—
—
—
6
—
—
—
119
33,578
761
—
—
—
—
—
324
—
Total
42,417
119
33,584
761
324
—
—
—
—
(27,292)
(27,292)
17,291,209 $
17 $
225,122 $
1,795 $
(177,021) $
49,913
275,862
23,361
4,309,090
—
—
—
—
—
5
—
—
—
738
—
21,852
1,403
—
—
—
—
—
—
706
—
—
—
—
—
—
738
—
21,857
1,403
706
(45,787)
(45,787)
Balances at December 31, 2018
21,899,522 $
22 $
249,115 $
2,501 $
(222,808) $
28,830
See accompanying notes to the consolidated financial statements.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
APOLLO ENDOSURGERY, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
Years Ended December 31, 2018 and 2017
(In thousands)
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
2018
2017
$
(45,787) $
(27,292)
Depreciation and amortization
Amortization of deferred financing costs
Non-cash interest expense
Provision for doubtful accounts receivable
Change in inventory reserve
Stock based compensation
Foreign exchange on short-term intercompany loans
Loss on divestiture
Changes in operating assets and liabilities:
Accounts receivable
Inventory
Prepaid expenses and other assets
Accounts payable and accrued expenses
Net cash used in operating activities
Cash flows from investing activities:
Purchases of property and equipment
Purchases of intangibles and other assets
Divestiture of Surgical product line
Net cash provided by/(used in) investing activities
Cash flows from financing activities:
Proceeds from exercise of stock options
Proceeds from issuance of common stock
Payments of deferred financing costs
Payment of debt
Net cash provided by financing activities
Effect of exchange rate changes on cash
Net increase (decrease) in cash, cash equivalents and restricted cash
Cash, cash equivalents and restricted cash at beginning of year
Cash, cash equivalents and restricted cash at end of year
Supplemental disclosure of cash flow information:
Cash paid for interest
Cash paid for income taxes
9,292
491
359
186
387
1,403
1,161
7,770
(162)
3,004
41
(1,264)
(23,119)
(1,951)
(930)
10,000
7,119
738
21,857
(400)
(12,500)
9,695
(106)
(6,411)
31,418
$
$
25,007 $
3,775 $
98
9,717
299
595
180
692
761
(193)
—
(916)
(2,850)
948
4,739
(13,320)
(1,564)
(573)
—
(2,137)
119
33,584
—
(7,000)
26,703
131
11,377
20,041
31,418
3,775
274
See accompanying notes to the consolidated financial statements.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
APOLLO ENDOSURGERY, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Years Ended December 31, 2018 and 2017
(In thousands, except for share data)
(1) Organization and Business Description
Apollo Endosurgery, Inc. is a Delaware corporation with both domestic and foreign wholly-owned subsidiaries. Throughout these Notes "Apollo" and the
"Company" refer to Apollo Endosurgery, Inc. and its consolidated subsidiaries.
Apollo is a medical technology company primarily focused on the design, development, and commercialization of innovative medical devices. The Company's
products are used by gastroenterologists and surgeons in a variety of settings to provide interventional therapy to patients who suffer from various
gastrointestinal conditions including obesity and the many co-morbidities associated with obesity.
The Company's core products include the OverStitch ™ Endoscopic Suturing System, the Orbera® Intragastric Balloon System, which together comprise the
Company's Endo-bariatric products and the recently divested Lap-Band® adjustable gastric banding system ("Surgical" products). In the U.S., the Company
offers Orbera® Coach, a digital and remotely delivered aftercare program. All devices are regulated by the U.S. Food and Drug Administration (the "FDA") or an
equivalent regulatory body outside the U.S.
The Company's products are sold throughout the world with direct sales markets in the U.S., Europe, Australia, Brazil and Canada. The Company also has a
manufacturing facility located in Costa Rica.
In December 2018, the Company completed an asset sale with ReShape Lifesciences, Inc ("ReShape") in which ReShape acquired substantially all of the
assets exclusively related to the Surgical product line for $10,000 in cash at closing and future cash consideration. As additional consideration, the Company
received from ReShape substantially all of ReShape's assets exclusively related to ReShape's intragastric balloon product line. Effective December 31, 2018,
the Company ceased sales of ReShape's intragastric balloon system.
(2) Significant Accounting Policies
(a) Principles of Consolidation
The consolidated financial statements include the accounts of the Company and all of its wholly-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
(b) Use of Estimates
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the U.S. ("U.S. GAAP") requires
management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at
the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results are likely to
differ from those estimates, and such differences may be material to the consolidated financial statements. Significant items subject to such estimates and
assumptions include revenue recognition, going concern, financial projections, useful lives of intangibles and long-lived assets, stock compensation, deferred tax
asset valuation, long-lived asset and goodwill impairment, allowance for doubtful accounts, and valuation of inventory.
(c) Cash and Cash Equivalents
The Company considers all highly liquid investments with a remaining maturity at date of purchase of three months or less to be cash equivalents.
(d) Restricted Cash
The Company entered into irrevocable letters of credit with three banks to secure obligations under lease agreements and performance based obligations.
These letters of credit are secured by cash balances totaling $1,011 and $ 905 which are recorded in restricted cash on the balance sheet as of December 31,
2018 and 2017, respectively.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(e) Accounts Receivable
The Company generally extends credit to certain customers without requiring collateral. The Company provides an allowance for doubtful accounts based on
management's evaluation of the collectability of accounts receivable. Accounts receivable are written off when it is determined amounts are uncollectible. The
recorded allowance for doubtful accounts was $559 and $ 452 as of December 31, 2018 and 2017, respectively. Accounts receivable of $ 101 and $ 238 were
written off during the years ended December 31, 2018 and 2017, respectively.
(f) Inventory
Inventory is stated at the lower of cost or net realizable value, net of any allowances. Charges for excess and obsolete inventory are based on specific
identification of obsolete inventory items and an analysis of inventory items approaching expiration date. We record estimated excess and obsolescence charges
to cost of sales. The Company's inventories are stated using the weighted average cost approach, which approximates actual costs.
(g) Fair Value Measurements
The carrying amounts of the Company's financial instruments, which primarily include cash and cash equivalents, accounts receivable, accounts payable and
accrued expenses, approximate their fair values due to their short maturities. The fair value of the Company's long-term debt is estimated by management to
approximate $21,935 at December 31, 2018 and $ 33,158 at December 31, 2017. Management's estimates are based on comparisons of the characteristics of
the Company's obligations, comparable ranges of interest rates on recently issued debt, and maturity. Such valuation inputs are considered a Level 3
measurement in the fair value valuation hierarchy.
The accounting guidance defines fair value, establishes a consistent framework for measuring fair value and expands disclosure for each major asset and
liability category measured at fair value on either a recurring or nonrecurring basis. Fair value is defined as an exit price, representing the amount that would be
received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement
that should be determined based on assumptions that market participants would use in pricing an asset or liability. As a basis for considering such assumptions,
the accounting guidance establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value as follows:
Level 1: Observable inputs such as quoted prices in active markets;
Level 2: Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly; and
Level 3: Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.
(h) Property and Equipment
Property and equipment are carried at cost less accumulated depreciation. Depreciation is computed using the straight-line method over the estimated useful
lives of the related assets, except for leasehold improvements, which are depreciated straight-line over the shorter of the estimated useful life or the life of the
lease. Major renewals and betterments are capitalized. Validation costs (including materials and labor) that are required to bring machinery to working condition
are capitalized. Expenditures for repairs and maintenance and minor replacements are charged to expense as incurred.
(i) Purchase Accounting
Business combinations must be evaluated to determine whether it meets the definition of a business or will be accounted for as an asset acquisition. A business
consists of inputs and processes that have the ability to create outputs and are accounted for using the acquisition method of accounting. Using this method, the
assets acquired and liabilities assumed are recorded at their fair value with any excess going to goodwill. When a business combination is considered an asset
acquisition, the cost accumulation approach is used and the total consideration is allocated to the assets acquired and liabilities assumed on a relative fair value
basis.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(j) Goodwill and Other Intangible Assets
Goodwill is not amortized but is tested annually for impairment or more frequently if impairment indicators exist. For annual and interim goodwill impairment
tests, the Company first assesses qualitative factors before performing a quantitative assessment of the fair value of a reporting unit. If it is determined on the
basis of qualitative factors that the fair value of the reporting unit is more likely than not less than the carrying amount, a quantitative impairment test is required.
The Company's evaluation of goodwill completed on December 31, 2018 and 2017 resulted in no impairment losses.
Definite-lived intangible assets consist of customer relationships, product technology, trade names, patents and trademarks and capitalized software which are
amortized over their estimated useful lives. Costs to extend the lives of and renew patents and trademarks are capitalized when incurred.
(k) Valuation of Long-Lived Assets
Long-lived assets, including definite-lived intangible assets, are monitored and reviewed for impairment whenever events or changes in circumstances indicate
that the carrying amount of any such asset may not be recoverable. The determination of recoverability is based on an estimate of undiscounted cash flows
expected to result from the use of an asset and its eventual disposition. The estimate of undiscounted cash flows is based upon, among other things, certain
assumptions about expected future operating performance. The Company's estimates of undiscounted cash flows may differ from actual cash flows. If the sum of
the undiscounted cash flows is less than the carrying value of the asset, an impairment charge is recognized, measured as the amount by which the carrying
value exceeds the fair value of the asset. The Company's evaluation of long-lived assets for the years ended December 31, 2018 and 2017 resulted in no
impairment losses.
(l) Revenue Recognition
The Company's principal source of revenues is from the sale of its products. Revenue is recognized when control of the promised goods is transferred to our
customers, in an amount that reflects the consideration we expect to be entitled to in an exchange or those goods. Generally, these are met under the
Company's agreements with most customers upon product shipment. This includes sales to distributors, who sell the products to their customers, take title to the
products and assume all risks of ownership at the time of shipment. Our distributors are obligated to pay within specified terms regardless of when, if ever, they
sell the products.
Customers and distributors generally have the right to return or exchange products purchased from the Company for up to thirty days from the date of product
shipment. At the end of each period, the Company determines the extent to which its revenues need to be reduced to account for expected returns and
exchanges. Certain customer may receive volume rebates or discounts, which are accounted for as variable consideration. We estimate these amounts based
on the expected amount to be provided to customers and reduce revenues recognized.
We record deferred revenues when cash payments are received in advance of the transfer of goods.
The Company accounts for taxes collected from customers and remitted to governmental authorities on a net basis. Accordingly, such amounts are excluded
from revenues. Amounts billed to customers related to shipping and handling are included in revenues. Shipping and handling costs related to revenue producing
activities are included in cost of sales.
(m) Research and Development
Research and development costs are expensed as incurred.
(n) Stock-based Compensation Plans
The Company recognizes compensation costs for all stock-based awards based upon each award's estimated fair value as determined on the date of grant. The
Company utilizes the Black-Scholes option-pricing model to determine the fair value of stock option awards. Compensation cost is recognized on a straight-line
basis over the respective vesting period of the award. Adjustments for actual forfeitures are made in the period which they occur.
(o) Advertising
The Company expenses advertising costs as incurred. The Company incurred approximately $ 3,024 and $ 3,295 in advertising costs during the years ended
December 31, 2018 and 2017, respectively.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(p) Income Taxes
The Company accounts for deferred income taxes using the asset and liability method. Under this method, deferred income taxes arise from temporary
differences between the tax basis of assets and liabilities and their reported amounts in the financial statements, which will result in taxable or deductible
amounts in the future. Temporary differences are then measured using the enacted tax rates and laws. Valuation allowances are established, when necessary,
to reduce deferred tax assets to the amount that is more-likely than-not to be realized. Determining the appropriate amount of valuation allowance requires
management to exercise judgment about future operations.
In the ordinary course of business, there are many transactions for which the ultimate tax outcome is uncertain. The Company regularly assesses uncertain tax
positions in each of the tax jurisdictions in which it has operations and accounts for the related consolidated financial statement implications. The amount of
unrecognized tax benefits is adjusted when information becomes available or when an event occurs indicating a change is appropriate. The Company includes
interest and penalties related to its uncertain tax positions as part of income tax expense.
(q) Medical Device Excise Tax
Effective as of January 1, 2013, the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Affordability Reconciliation Act,
imposed a medical device excise tax (MDET) of 2.3% on any entity that manufactures or imports certain medical devices offered for sale in the U.S. In
December 2015, the medical device tax was suspended for two years and on January 22, 2018 the moratorium on this tax was extended through December 31,
2019.
(r) Foreign Currency
The Company is exposed to foreign currency exchange risk as foreign subsidiaries generally operate and utilize functional currencies in local currencies other
than the U.S. Dollar, which is the Company's reporting currency. The Company translates foreign assets and liabilities at exchange rates in effect at the balance
sheet dates, and the revenues and expenses using average rates during the year. The resulting foreign currency translation adjustments are recorded as a
separate component of accumulated other comprehensive income in the accompanying consolidated balance sheets. The Company does not hedge foreign
currency translation risk in the net assets and income it reports from these sources. Exchange rate fluctuations on short-term intercompany loans are included in
other expense in the consolidated statement of operations and comprehensive loss.
(s) Recent Accounting Pronouncements
On January 1, 2018, the Company adopted the provisions of ASU 2014-09, Revenue from Contracts with Customers ("ASC 606"), which requires an entity to
recognize revenue when it transfers control of promised goods or services to customers in an amount that reflects the consideration to which it expects to be
entitled in exchange for those goods or services. The Company adopted this new standard using the modified retrospective method and applied this method only
to contracts that were not completed as of January 1, 2018. Prior periods were not retrospectively adjusted. There was no material impact on the Company's
financial statement upon adoption of the new revenue recognition standard.
On January 1, 2018, the Company adopted the provisions of ASU 2017-01, Business Combinations: Clarifying the Definition of a Business ("ASU 2017-01") to
clarify the definition of a business when evaluating whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses.
On January 1, 2019, the Company adopted the provisions of ASU 2016-02, Leases ("ASU 2016-02") which requires a lessee to recognize assets and liabilities
for leases with a maximum possible term of more than 12 months. Upon adoption, the Company used the modified retrospective approach and chose not to
adjust comparative periods. The Company elected the package of practical expedients permitted under the transition guidance within the new standard, which
among other things, allowed us to carry forward the historical lease classification. The Company recognized a liability to make lease payments (the lease
liability) and a right-of-use asset representing its right to use the leased asset (the underlying asset) for the lease term of $2,669 on the balance sheet, thereby
increasing reported assets and liabilities. The cumulative-effect adjustment made to the opening balance of retained earnings as of January 1, 2019 did not have
a material impact on the Company's financial statements. The income statement recognition of lease expense is similar to the Company's current methodology.
In January 2017, the FASB issued ASU 2017-04, Intangibles - Goodwill and Other: Simplifying the Test for Goodwill Impairment (“ASU 2017-04”) to simplify the
accounting for goodwill impairment. The guidance removes step two of the goodwill impairment test, which requires a hypothetical purchase price allocation. A
goodwill impairment will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill.
Entities will continue to have the option to perform a qualitative assessment to determine if a quantitative impairment test is necessary.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
ASU 2017-04 will be effective for the Company for annual and interim reporting in fiscal years beginning after December 15, 2019.
(3) Divestiture of Surgical Product Line
On December 17, 2018, the Company entered into an Asset Purchase Agreement ("Purchase Agreement") with ReShape pursuant to which, ReShape
acquired substantially all of the Company's assets exclusively related to our Surgical product line for $10,000 at the closing of the transaction and future
payments of an additional $2,000 on each of the first and second anniversary of the closing date and $ 3,000 on the third anniversary of the closing date. As
additional consideration, Apollo received ReShape's assets exclusively related to their intragastric balloon product. Legal fees associated with the divestiture
were $498 and are also included in loss on divestiture.
The $7,000 receivable from Reshape was discounted at 10% in order to determine the fair value for the consideration received. The current portion of this
receivable is included in other current assets on the balance sheet with the long-term portion included in other assets.
A summary of the consideration received from Reshape for the divestiture and the related Surgical assets that were divested is included below:
Consideration received
Cash
Receivable
Inventory
Intangible assets
Total consideration
Less: Assets divested
Inventory
Property and equipment, net of accumulated depreciation
Intangible assets, net of accumulated amortization
Patents and trademarks, net of accumulated amortization
Goodwill
Total assets divested
Legal fees associated with divestiture
Loss on divestiture
$
$
10,000
5,725
102
1,781
17,608
(873)
(478)
(21,186)
(805)
(1,538)
(24,880)
(498)
(7,770)
The assets acquired from ReShape were accounted for as an asset acquisition. The Surgical product line was deemed to be a business, and thus goodwill was
allocated to the Surgical product line and included in assets divested.
Apollo and ReShape each made customary representations, warranties, covenants and indemnities in the Purchase
Agreement. Subject to certain limitations, each party agreed to indemnify the other party for certain matters, including breaches of representations, warranties
and covenants in the Purchase Agreement. The execution of the Purchase Agreement and the closing of the transaction occurred simultaneously on December
17, 2018.
ReShape also granted the Company a security interest in substantially all of ReShape’s assets as security for the payment and performance when due of all of
ReShape’s obligations under the Purchase Agreement, including the obligation to pay its remaining cash purchase price.
In addition, the parties entered into a transition services agreement, supply agreement and distribution agreement
pursuant to which, among other things, the Company will manufacture the Surgical product for ReShape for up to two years, and will serve as ReShape’s
distributor of the Surgical product outside of the U.S. for up to one year.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(4) Concentrations
Consolidated financial instruments that potentially subject the Company to a concentration of credit risk principally consist of cash and cash equivalents and
accounts receivable. At December 31, 2018, the Company's cash and cash equivalents and restricted cash are held in deposit accounts at three different banks
totaling $25,007. The Company has not experienced any losses in such accounts, and management does not believe the Company is exposed to any significant
credit risk. Management further believes that the concentration of credit risk in the Company's accounts receivable is substantially mitigated by the Company's
evaluation process, relatively short collection terms, and the high level of creditworthiness of its customers. The Company continually evaluates the status of
each of its customers, but generally requires no collateral.
The Company had no customers that comprised a concentration greater than 10% of the Company's total accounts receivable or revenues as of or for the years
ended December 31, 2018 and 2017.
(5) Inventory
Inventory consists of the following as of December 31:
Raw materials
Work in progress
Finished goods
Total inventory
2018
2017
3,806 $
352
5,774
9,932 $
3,764
493
10,086
14,343
$
$
The Company recorded an inventory impairment charge of $ 387 and $ 692 and for the year ended December 31, 2018 and 2017, respectively. For the year
ended December 31, 2018, the Company disposed of $1,419 of expired product which was fully reserved. Finished goods included $ 328 of consigned inventory
at December 31, 2018.
(6) Property and Equipment
Property and equipment consists of the following as of December 31:
Equipment
Furniture, fixtures and tooling
Computer hardware
Leasehold improvements
Construction in process
Less accumulated depreciation
Property and equipment, net
Depreciable
Lives
5 years
4 - 8 years
3 - 5 years
3 - 5 years
2018
2017
$
$
7,510 $
2,223
1,326
1,400
130
12,589
(6,692)
5,897 $
5,501
3,524
1,223
1,424
1,871
13,543
(6,658)
6,885
The Company recorded depreciation expense of $ 2,024 and $ 2,250 for the years ended December 31, 2018 and 2017, respectively. There were no impairment
charges for the years ended December 31, 2018 or 2017. The Company disposed of $1,861 of gross property and equipment with accumulated depreciation of
$1,383 related to the disposition of the Surgical product line (see Note 3) and also disposed of $ 608 which was fully depreciated as of December 31, 2018 and
no longer being utilized by the Company.
(7) Goodwill and Other Intangible Assets
The following table reflects the changes in goodwill for the years ended December 31, 2018 and 2017:
December 31, 2016
December 31, 2017
Goodwill associated with divestiture of Surgical product line (see Note 3)
December 31, 2018
$
$
$
6,828
6,828
(1,538)
5,290
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Other intangible assets consist of the following as of December 31:
Customer relationships
Lap-Band technology
Orbera technology
Trade names
Patents and trademarks
Other
Less accumulated amortization
Intangible assets, net
Useful Life
9 years
10 years
12 years
10 years
5 years
1 - 5 years
2018
2017
$
8,301 $
—
4,600
1,700
2,292
2,421
19,314
(9,455)
$
9,859 $
30,300
15,500
4,600
7,900
4,579
1,957
64,836
(28,415)
36,421
In connection with the Purchase Agreement (see Note 3), the Company divested of the intangibles related to the Surgical product line. Additionally, the
Company obtained an independent third-party valuation to determine the value of the customer relationships purchased of $1,781.
Amortization expense related to the above intangible assets was $ 7,268 and $ 7,467 during 2018 and 2017, respectively. Additionally, we capitalized $ 416 and
$401 related to the extension and renewal of our patents and trademarks during 2018 and 2017, respectively.
Amortization for the next five years is as follows:
2019
2020
2021
2022
2023
Thereafter
Total
(8) Accrued Expenses
Accrued expenses consist of the following as of December 31:
Accrued employee compensation and expenses
Accrued professional service fees (including clinical trials)
Accrued returns and rebates
Accrued insurance and taxes
Other
Total accrued expenses
62
$
$
2018
2017
$
$
3,804 $
2,983
331
625
1,413
9,156 $
2,181
1,909
1,786
1,612
845
1,526
9,859
4,243
522
438
527
1,770
7,500
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(9) Long-Term Debt
Long-term debt consists of the following as of December 31:
Senior secured credit facility
Payment-in-kind interest
Discount on long-term debt
Deferred financing costs
Long-term debt
2018
2017
$
$
19,500 $
2,142
(175)
(277)
21,190 $
32,000
2,223
(534)
(368)
33,321
In February 2015, the Company entered into a senior secured credit facility (the "Credit Agreement") with Athyrium Opportunities II Acquisition LP ("Athyrium")
to borrow $50,000 which is payable in a lump sum on February 27, 2020. The Credit Agreement is secured by all of the Company's assets and has priority over
all other debt. The Credit Agreement bears interest at 10.5% per annum. In the first year, 7% cash interest was paid quarterly and 3.5% of payment-in-kind was
added to the outstanding debt. After March 15, 2016, 10.5% of interest became payable in cash on a quarterly basis. An additional 2% of the outstanding
amount will be due at end of the loan term. The Company is accruing this additional payment-in-kind interest as interest expense using the effective interest rate
method. The Company used $39,500 of these proceeds in 2015 to pay off the previous outstanding long-term debt. In October 2016, the Company issued a
warrant to purchase 163,915 shares of common stock with an exercise price of $ 21.29 per share. These warrants remain outstanding and are included in Note
10.
The Credit Agreement includes covenants and terms that place certain restrictions on the Company's ability to incur additional debt, incur additional liens, make
investments, effect mergers, declare or pay dividends, sell assets, engage in transactions with affiliates, or make capital expenditures. The Credit Agreement
also includes financial covenants including minimum consolidated quarterly revenue requirements and a consolidated debt to revenue ratio and provides certain
limited cure provisions in the event these requirements are not met.
In February 2018, the Company entered into a Sixth Amendment to the Credit Agreement with Athyrium which removed the minimum quarterly revenue
requirement and increased the maximum debt-to-revenue ratio to 0.54 from 0.49 with the maximum debt-to-revenue ratio declining gradually each quarter over
the remaining term of the facility.
In July 2018, the Company entered into a waiver with Athyrium that increased the maximum debt-to-revenue ratio for the second quarter of 2018 to 0.56 from
0.53, waived the existing default under such ratio and prepaid $ 1,500 of the principal amount outstanding, together with accrued interest and certain fees and
expenses.
In September 2018, the Company made an additional $ 1,000 voluntary principal payment to the lender and in November, 2018, the Company entered into a
Seventh Amendment to the Credit Agreement and Waiver with Athyrium which granted a waiver for the noncompliance of the debt-to-revenue ratio for the third
quarter 2018. In addition, the amendment removed the cure right provision.
In December 2018, the Company entered into an Eighth Amendment to the Credit Agreement with Athyrium which amended, among other things (i) the
covenants under the Credit Agreement with Athyrium to permit the transactions contemplated by the Asset Purchase Agreement with ReShape Lifesciences
Inc.; (ii) modified the mandatory prepayment provisions and required the Company to pay Athyrium the additional cash consideration received from ReShape on
the first, second and third anniversaries of the closing date, so long as the Credit Agreement remains outstanding; and (iii) required the Company to pay
Athyrium the initial $10,000 received from ReShape plus accrued interest due under the Credit Agreement and certain fees and expenses.
In March 2019, the Company entered into a Term Loan Facility with Solar Capital Partners to borrow $ 35,000 of which $22,372 of the proceeds were used to
repay our Senior Secured Credit Facility. See Note 19 for further details.
(10) Stockholders' Equity
(a) Authorized Stock
The Company’s amended and restated certificate of incorporation, authorizes the Company to issue 115,000,000 shares of common and preferred stock,
consisting of 100,000,000 shares of common stock with $0.001 par value and 15,000,000 shares of preferred stock with $0.001 par value. The Company has
reserved common shares for issuance upon the exercise of the authorized and issued common stock options and warrants.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(b) Warrants
Warrants consist of the following as of December 31, 2018:
Warrant Expiration Date
September 25, 2019
December 29, 2021
February 27, 2022
Total number of warrants outstanding
Weighted average exercise price of warrants outstanding
Number of shares
Exercise price per share
46,818 $
40,456 $
163,915 $
251,189
$
258.72
13.70
21.29
64.32
There were no warrants exercised in 2018 and 702 expired during the year ended December 31, 2018.
(11) Stock Option Plans
(a) Plans
2006 Plan
The Company's 2006 Equity Incentive Plan (the "2006 Plan") covers employees, consultants, and nonemployee directors of the Company and provides for the
grant of incentive stock options or nonqualified stock options to purchase shares of the Company's common stock. Options to date have been granted to
employees at 100% of the fair value at the date of the grant. The fair value, vesting period, and expiration dates of the options granted were determined by the
Board of Directors at the time of grant. The maximum term of options granted under the 2006 Plan is 10 years from the date of grant. Options generally vest over
a period of time, typically not more than 5 years. Under certain circumstances, the Company may repurchase previously granted options or shares issued upon
the exercise of a previously granted option. The 2006 Plan expired in May 2016.
2016 Plan
The Company's 2016 Equity Incentive Plan (the "2016 Plan") covers employees, consultants, and nonemployee directors of the Company and provides for the
grant of incentive stock options, nonstatutory stock options, stock appreciation rights, restricted stock awards, restricted stock units and other stock awards to
purchase shares of the Company's common stock. Options to date have been granted to employees at 100% of the fair value at the date of the grant. The fair
value, vesting period, and expiration dates of the options granted are determined by the Board of Directors at the time of grant. The maximum term of options
granted under the 2016 Plan is 10 years from the date of grant. Options generally vest over a period of time, typically not more than 5 years. The 2016 Plan was
replaced by the 2017 Plan.
2017 Plan
The Company's 2017 Equity Incentive Plan ("2017 Plan") was approved in June 2017 by the Company's stockholders. The 2017 plan covers employees,
consultants, and nonemployee directors of the Company and provides for the grant of incentive stock options, nonstatutory stock options, stock appreciation
rights, restricted stock awards, restricted stock units, performance stock awards, performance cash awards, and other stock awards to purchase shares of the
Company's common stock. Options to date have been granted to employees at 100% of the fair value at the date of the grant. The fair value, vesting period, and
expiration dates of the options granted are determined by the Board of Directors at the time of grant. The maximum term of options granted under the 2017 Plan
is 10 years from the date of grant. Options generally vest over a period of time, typically not more than 5 years. The plan's reserve is automatically increased by
4% of the total number of shares outstanding at the prior year end for a period of ten years. Shares subject to awards granted under the 2017 Plan which expire,
are repurchased, or are canceled or forfeited will again become available for issuance under the 2017 Plan. The shares available will not be reduced by awards
settled in cash or by shares withheld to satisfy tax withholding obligations. Only the net number of shares issued upon the exercise of stock appreciation rights or
options exercised by means of a net exercise will be deducted from the shares available under the 2017 Plan.
The 2017 Plan replaced the Company's 2016 Plan, which was the successor to the 2006 Plan, and the Lpath Plan (collectively, the Lpath Plan, with the 2016
Plan and the 2006 Plan, the "Prior Plans"). Grants will no longer be made under the Prior Plans, but the awards that remain outstanding will continue to be
governed by the terms of the applicable Prior Plan and the applicable award agreement.
As of December 31, 2018, the Company has 974,056 shares of common stock reserved for issuance under the 2017 Plan.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(b) Stock Option Activity
A summary of the stock option activity under the Company's 2017 Plan and Prior Plans (collectively, the "Equity Plans") as of December 31, 2018 is presented
below.
Options outstanding, December 31, 2017
Options granted
Options exercised
Options forfeited
Options outstanding, December 31, 2018
Options vested and expected to vest
Options exercisable
Options
Weighted Average
Exercise Price
1,390,428
681,403
(275,862)
(293,213)
1,502,756
1,502,756
725,972
$4.64
$6.72
$2.68
$6.24
$5.63
$5.63
$4.53
Weighted Average
Remaining Contractual
Term
Aggregate Intrinsic
Value
7.0 years
$2,432
7.7 years
7.7 years
6.5 years
$217
$217
$174
The fair value for options under the Equity Plans was estimated at the date of grant using the Black-Scholes option pricing model in valuing the stock awards.
Prior to December 2016, the value of the Company's common stock was determined by an independent valuation firm using a blend of an income approach,
market approach and cost approach. The Black-Scholes model requires estimating dividend yield, volatility, risk-free rate of return during the service period and
the expected term of the award. The expected dividend yield assumption is based on the Company’s expectation of zero future dividend payouts. The volatility
assumption is based on the historical volatilities of the Company’s common stock and of comparable public companies. The risk free rate of return assumption
utilizes yields on U.S. treasury zero-coupon bonds with maturity that is commensurate with the expected term for awards issued to employees and the
contractual term for awards issued to non-employees. The expected term is derived using the simplified method and represents the weighted average period
that the stock awards are expected to remain outstanding.
The fair value of stock option grants has been estimated at the date of grant using the Black-Scholes option pricing model with the following weighted average
assumptions for the years ended December 31:
Risk free interest rate
Expected dividend yield
Estimated volatility
Expected life
Additional information regarding options is as follows:
Stock compensation cost
Weighted-average grant date fair value of options granted during the period
Aggregate intrinsic value of options exercised during the period
2018
2.7%
—%
63.3%
5.8 years
2017
1.9%
—%
61.7%
5.4 years
2018
2017
$
$
$
1,403 $
3.95 $
921 $
761
3.75
231
The aggregate intrinsic value in the table above represents the total pre-tax value of the options shown, calculated as the difference between the Company’s
closing stock price on December 31, 2018 and the exercise prices of the options shown, multiplied by the number of in-the money options. This is the aggregate
amount that would have been received by the option holders if they had all exercised their options on December 31, 2018 and sold the shares thereby received
at the closing price of the Company’s stock on that date. This amount changes based on the closing price of the Company’s stock.
Annually the Company grants options that would vest only upon the Company's achievement of certain global revenue and EBITDA targets and in 2018, 37,500
options were determined to have met the underlying conditions. The remaining performance shares were forfeited.
Unrecognized compensation expense related to unvested options was approximately $ 2,579 at December 31, 2018, with a remaining amortization period of
less than 2.6 years.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
A summary of the restricted stock unit activity under the Company's Equity Plans as of December 31, 2018 is presented below:
Unvested units, December 31, 2017
Restricted stock units granted
Restricted stock units vested
Restricted stock units forfeited
Unvested units, December 31, 2018
Units
Weighted Average Grant Date Fair
Value
Aggregate Intrinsic Value
61,198
61,220
(23,361)
(4,117)
94,940
$5.60
$6.63
$5.64
$6.53
$6.21
$343
$328
Unrecognized compensation expense related to unvested restricted stock units was approximately $ 438 at December 31, 2018, with a remaining amortization
period of 2.6 years.
(12) Commitments
(a) Lease Commitments
The Company has entered into various lease agreements for its office space in Texas, California, the United Kingdom, Australia, Italy, and Brazil, and for the
manufacturing facility located in Costa Rica. The Company also has various lease agreements for equipment and vehicles.
Lease expense for the years ended December 31, 2018 and 2017 was $ 1,290 and $ 1,769, respectively. Certain of these leases contain scheduled rent
increases which are included in lease expense and recognized using the straight-line method over the term of the leases.
At December 31, 2018, minimum rental commitments under non-cancellable operating leases payable over the next five years are as follows:
2019
2020
2021
2022
2023
Thereafter
Total
(b) Risk Management
$
$
1,174
965
764
84
84
49
3,120
The Company maintains various forms of insurance that the Company's management believes are adequate to reduce the exposure to these risks to an
acceptable level.
(c) Employment Agreements
Certain executive officers are entitled to payments if they are terminated without cause or as a result of a change in control. Upon termination without cause, and
not as a result of death or disability, each of such officers is entitled to receive a payment of base salary for three to twelve months following termination of
employment and such officer will be entitled to continue to receive coverage under medical and dental benefit plans for three to twelve months or until such
officer is covered under a separate plan from another employer. Upon a termination other than for cause or for good reason within twelve months following a
change in control, each of such officers will be entitled to the same benefits as upon termination without cause and will also be entitled to certain acceleration of
such officer's outstanding unvested options at the time of such termination.
(d) Litigation
Management believes there are no claims or actions pending or threatened against the Company, the ultimate disposition of which would have a material impact
on the Company's consolidated financial position, results of operations or cash flows.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(13) Contingencies
Accounts payable includes $ 8,505 related to inventory and transition services provided during 2015 and 2016. The payment of these charges is contingent upon
resolution of audit findings related to the transition agreements in connection with a dispute with Allergan. As the dispute has not yet been resolved with Allergan,
the timing and terms of final amounts payable remain uncertain.
(14) Defined Contribution Plan
The Company sponsors defined contribution plans for employees in the U.S. and Europe. The cost of these plans, including employer contributions, was $ 731
and $645 for the years ended December 31, 2018 and 2017 respectively.
(15) Income Taxes
Income tax expense of $ 191 and $ 304 for the years ended December 31, 2018 and 2017, respectively is composed of foreign income taxes on earnings
generated in the foreign subsidiaries.
Deferred income taxes reflect the net effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and
the amounts used for income tax purposes. Significant components of the Company's deferred taxes at December 31 are as follows:
Deferred tax assets:
Capitalized transaction costs
Intangible assets
Inventory valuation
Research and development credit
Foreign timing differences
Other
Net operating loss carryforwards
Deferred tax liabilities:
Unremitted foreign earnings
Depreciable assets
Total net deferred tax assets
Less valuation allowance
Net deferred tax assets (liabilities)
2018
2017
$
385 $
1,321
255
3,597
187
1,942
45,067
52,754
(461)
(64)
(525)
52,229
(52,229)
$
— $
415
2,418
506
3,241
(17)
952
34,887
42,402
(438)
(47)
(485)
41,917
(41,917)
—
The Company has established a valuation allowance equal to the total net deferred tax asset due to uncertainties regarding the realization of deferred tax
assets based on the Company's lack of earnings history and potential limitations pursuant to changes in ownership under Internal Revenue Code Section 382.
The valuation allowance increased by $10,312 during the year ended December 31, 2018, primarily as a result of changes in net operating loss.
As of December 31, 2018, the Company has no unrecognized tax benefits or accrued interest or penalties associated with uncertain tax positions.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
The Company's provision for income taxes differs from the expected tax expense amount computed by applying the statutory federal income tax rate of 21% for
2018 and 35% for 2017 to income before income taxes as a result of the following:
Tax at U.S. statutory rate
State taxes, net of deferred benefit
Foreign tax rate differential
Foreign taxes
Permanent differences
Research and development tax credit
Other
Deferred tax adjustment
Unremitted foreign earnings
Valuation allowance - current year
Change in valuation allowance - rate change
Federal tax rate change
Income tax expense
2018
2017
$
(9,575) $
(2,017)
(92)
(88)
993
(362)
211
796
13
10,312
—
—
$
191 $
(9,176)
(866)
(451)
—
726
(444)
1,045
—
(757)
9,332
(20,199)
21,094
304
As of December 31, 2018, the Company had federal net operating loss carryforwards of approximately $ 186,866 which will expire in varying amounts beginning
in 2025 if not utilized. The Company’s July 2017 stock offering qualified as an ownership change under section 382 which resulted in a reduction of $100,825 in
the Company’s U.S. federal net operating losses that will not be utilizable in the future, thus federal net operating loss carryforwards available to the Company
as of December 31, 2018 were $86,041. In June 2018, the Company had an additional stock offering that could potentially have triggered an additional
ownership change and is still being assessed.
The deferred tax asset associated with net operating loss carryforwards has been fully offset by a valuation allowance due to the uncertainty that the Company
will achieve taxable income necessary to utilize the net operating loss carryforward in the future.
The Company had state net operating loss carryforwards of approximately $ 104,818 which will begin to expire in varying amounts beginning in 2019. The
Company had foreign net operating losses of approximately $3,817 which begin to expire in varying amounts beginning in 2020, if not utilized.
New Tax Legislation
On December 22, 2017, the U.S. enacted the Tax Cuts and Jobs Act ("Tax Act") which makes significant changes in the U.S. tax law including a reduction in the
corporate tax rates from 35% to 21%. Because the Company previously established a valuation allowance equal to its total U.S. net deferred tax assets, the
enactment of the new tax law also reduced its valuation allowance and had no net impact on earnings. This adjustment was recorded in the Company's
December 31, 2017 consolidated financial statements.
On December 22, 2017, Staff Accounting Bulletin No. 118 was issued to address the implication of U.S. GAAP in situations when the Company does not have
the necessary information available, prepared, or analyzed in reasonable detail to complete the accounting for certain income tax effects of the Tax Act and
provided a one-year measurement period to complete the accounting required under ASC 740. Due to this significant tax law change, the Company recorded
provisional estimates within the tax provision based on the best information available as of the filing of the financial statements ending December 31, 2017.
During the fourth quarter of 2018, the Company finalized these estimates. As of the fourth quarter of 2018, there are no material impacts on tax expense with
respect to the finalization of tax positions taken due to Tax Reform Legislation.
(16) Net Loss Per Share
The basic and diluted net loss per common share presented in the consolidated statement of operations and comprehensive loss is calculated by dividing net
loss by the weighted-average number of common shares outstanding during the period, without consideration for common stock equivalents. Potentially dilutive
shares, which include warrants for the purchase of common stock, restricted stock units, and options outstanding under the Company's equity incentive plans,
are considered to be common stock equivalents and are only included in the calculation of diluted net loss per share when their effect is dilutive.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Potentially dilutive securities not included in the calculation of diluted net loss per share attributable to common stockholders because to do so would be anti-
dilutive are as follows (in common stock equivalent shares):
Warrants for common stock
Common stock options
Restricted stock units
(17) Liquidity and Capital Resources
Year Ended December 31
2018
2017
251,189
1,382,512
84,183
1,717,884
251,891
1,390,428
61,198
1,703,517
The Company has experienced operating losses since inception and occasional debt covenant violations and has an accumulated deficit of $ 222,808 as of
December 31, 2018. To date, the Company has funded its operating losses and acquisitions through equity offerings and the issuance of debt instruments. The
Company's ability to fund future operations and meet debt covenant requirements will depend upon the level of future operating cash flow and our ability to
access additional funding through either equity offerings, issuances of debt instruments or both. Management believes its existing cash and cash equivalents and
product revenues, along with the additional cash received with the refinancing, will be sufficient to meet liquidity and capital requirements for at least the next
twelve months, although there can be no assurances that the Company will be able to do so. The Company periodically evaluates its liquidity requirements,
alternative uses of capital, capital needs and available resources. As a result of this process, the Company has in the past, and may in the future, explore
alternatives to finance its business plan, including, but not limited to, a public offering of its common stock, private equity or debt financings, reduction of planned
expenditures, or other sources.
In July 2017, the Company completed a public offering selling 6,542,453 shares at a price of $ 5.50 per share, including 853,363 shares sold to the underwriters
upon the full exercise of their option to purchase additional shares, before the underwriting discount. The public offering generated net proceeds of
approximately $33,584, after deducting the underwriting discount and related offering expenses.
In December 2017, the Company filed a shelf registration statement on Form S-3 with the Securities and Exchange Commission ("SEC"), which permits the
offering, issuance and sale by it of up to $50,000 of its common stock. At that time the Company also entered into a sales agreement with Cantor Fitzgerald &
Co. for the sale and issuance of shares of its common stock of up to $16,000 from time to time in an "at-the-market" program.
In June 2018, the Company completed a public offering selling 4,309,090 shares of common stock at a price of $ 5.50 per share, including 562,055 shares
pursuant to the exercise in full of the underwriters' option to purchase additional shares of common stock resulting in net proceeds of approximately $21,857,
after deducting underwriting discounts and expenses. Following the closing of this transaction, the December 2017 "at-the-market" program was terminated but
the sales agreement remains in effect.
In December 2018, the Company divested its Surgical product line and received $ 10,000 in cash on closing which was used to repay debt principal outstanding.
In March 2019, the Company entered into a Term Loan Facility with Solar Capital Partners to borrow $35,000 of which $22,372 of the proceeds were used to
repay the Company's senior secured credit facility (See Note 19). The Facility includes affirmative, negative and financial covenants, including maintenance of a
minimum cash balance of $10,000 and meeting minimum product revenues which requires the Company to achieve 85% of planned revenues beginning with
the first covenant compliance reporting period ending June 30, 2019. While the Company believes it will remain in compliance with these covenants, if it is
unable to do so, the Company would seek covenant waivers which may not be granted or the repayment of the Term Loan Facility could be accelerated at the
lender's discretion. The Company believes its existing cash and cash equivalents and product revenues, along with the additional cash received with the
refinancing, will be sufficient to meet liquidity and capital requirements for at least the next twelve months.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(18) Segment and Geographic Information
Operating segments are defined as components of an enterprise for which separate financial information is available and evaluated regularly by the chief
operating decision maker, or decision-making group, in deciding how to allocate resources and in assessing performance. The Company globally manages the
business within one reportable segment. Segment information is consistent with how management reviews the business, makes investing and resource
allocation decisions and assesses operating performance. The Company’s products are principally sold in the U.S. No other countries are individually significant.
Product sales by product group and geographic market, based on the location of the customer, whether the U.S. or outside the U.S. ("OUS") for the periods
shown were as follows:
Year Ended December 31, 2018
Year Ended December 31, 2017
U.S.
OUS
$
11,016 $
5,400
12,364 $
12,339
16,416
10,795
995
24,703
7,913
32
Total
Revenues
% Total
Revenues
U.S.
OUS
Total
Revenues
% Total
Revenues
23,380
17,739
41,119
18,708
1,027
38.4 % $
29.2 %
67.6 %
30.7 %
1.7 %
8,019 $
6,301
14,320
17,366
766
8,462 $
13,141
21,603
10,227
28
16,481
19,442
35,923
27,593
794
25.6 %
30.3 %
55.9 %
42.9 %
1.2 %
$
28,206 $
32,648 $
60,854
100.0 % $
32,452 $
31,858 $
64,310
100.0 %
ESS
IGB
Endo-bariatric
Surgical
Other
Total revenues
% Total revenues
46.4
%
53.6
%
50.5
%
49.5
%
----------------------
Endoscopic Suturing System ("ESS") and Intragastric Balloon ("IGB")
Total distributor sales were 24.8% of total OUS revenues for both the year ended December 31, 2018 and 2017. Sales in the next largest individual country
outside the U.S. were 7.6% and 8.2% for the year ended December 31, 2018 and 2017, respectively.
The following table represents property and equipment, net based on the physical geographic location of the asset:
U.S.
Costa Rica
Other
Total property and equipment, net
(19) Subsequent Events
2018
2017
$
$
2,337 $
3,347
213
5,897 $
2,855
3,748
282
6,885
In March 2019, the Company entered into a Term Loan Facility (the "Facility") with Solar Capital Ltd. ("Solar") to borrow $ 35,000. The Facility is due on
September 1, 2023 and bears interest at LIBOR plus 7.5%. Interest only is payable in arrears until March 1, 2021 (or September 1, 2021 if certain revenue
milestones are achieved). Principal payments are due on a straight-line basis after the interest-only period concludes. The Facility may provide an additional
$15,000 upon the Company's request subject to further credit approval. The Facility includes the customary affirmative covenants, negative covenants and
financial covenants, including a minimum liquidity of $10,000 and minimum product revenues. We used $ 22,372 of the proceeds of the Facility to repay our
senior secured credit facility, in full. Closing fees of $263 were paid on the closing date.
70
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Our management evaluated, with the participation and under the supervision of our Chief Executive Officer and our Chief Financial Officer, the effectiveness
and design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended, or the
Exchange Act) as of the end of the period covered by this Annual Report on Form 10-K. Based on this evaluation, our Chief Executive Officer and our Chief
Financial Officer have concluded that as of December 31, 2018 our disclosure controls and procedures were not effective because of the material weakness in
internal control over financial reporting discussed below.
The material weakness described below did not result in any adjustments to our consolidated financial statements for the year ended December 31, 2018 or to
any previously reported interim or prior year financial statement. As a result, management has concluded that our consolidated financial statements included in
this Form 10-K, are presented in conformity with U.S. generally accepted accounting principles.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange
Act). Our management, including our Chief Executive Officer and Chief Financial Officer and oversight of our Board of Directors, conducted an evaluation of the
effectiveness of our internal control over financial reporting as of December 31, 2018 based on the framework in Internal Control-Integrated Framework (2013)
issued by the Committee of Sponsoring Organization of the Treadway Commission ("COSO"). Based on our evaluation under the criteria set forth in Internal
Control — Integrated Framework, our management concluded that our internal control over financial reporting was not effective as of December 31, 2018 due to
the material weakness discussed below.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a
material misstatement of a company's annual or interim financial statements will not be prevented or detected on a timely basis.
In the fourth quarter of 2018, we assumed in-house responsibility for our sales order to cash processes (which includes revenue and accounts receivable) from a
third-party service provider. During the transition of these processes, our risk assessment process was not sufficient, and therefore ineffective, to ensure controls
were designed and implemented to respond to the risks in the transition and sufficient resources were not available to implement the transition in the requisite
timeframe. Additionally, the communication of objectives and responsibilities for internal controls related to the transition was insufficient, and therefore
ineffective. As a result, we identified control deficiencies over the verification of sales orders including price change approvals, the approval of credit memos and
the verification of the application of cash to individual customer account balances. The aggregation of these control deficiencies created a reasonable possibility
that a material misstatement to our consolidated financial statements would not be prevented or detected on a timely basis and therefore we concluded that, the
aggregation of these deficiencies represents a material weakness in our internal control over financial reporting as of December 31, 2018.
KPMG LLP, an independent registered public accounting firm, has audited the effectiveness of our internal controls over financial reporting and has issued an
attestation report, which contains an adverse opinion, as of December 31, 2018. Please see their report included in our consolidated financial statements found
on page 51 in this Annual Report on Form 10-K.
Changes in Internal Control over Financial Reporting
Other than the material weakness resulting from the fourth quarter transition of our order to cash process from an external third party service provider to an
internally managed process, there were no changes in our internal control over financial reporting during the quarter ended December 31, 2018 that have
materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.
Remediation
Commencing in the fourth quarter of 2018 and continuing into 2019, we began our remediation efforts including, but not limited to, establishing and enhancing
review procedures for sales orders, clarifying processes and controls for the approval of
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
credit memos, and implementing additional customer account review procedures related to the application of cash to customer accounts. Additionally, we are
evaluating our procedures related to when changes in our transaction processing environment or business occur to ensure our risk assessment, communications
and resources are sufficient to support our financial reporting objectives.
We believe these remediation actions will strengthen our internal control over financial reporting, but there can be no assurance that we will not conclude that
additional measures are required to remediate the material weakness identified above as we test and evaluate the effectiveness of our remediation efforts, which
may necessitate additional implementation and evaluation time.
Inherent Limitations on Effectiveness of Controls
Our management, including our principal executive and principal financial officers, does not expect that our disclosure controls and procedures or our internal
controls, will prevent all error and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance
that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits
of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute
assurance that all control issues and instances of fraud, if any, within Apollo have been detected.
ITEM 9B. OTHER INFORMATION
In March 2019, the Company entered into a Term Loan Facility (the "Facility") with Solar Capital Ltd. ("Solar") to borrow up to $50,000. The Company borrowed
$35,000 on the effective date of the Facility, and the remaining $15,000 may be provided at the request of the Company subject to further credit approval. All
loans under the Facility are due on September 1, 2023. The Facility bears interest at LIBOR plus 7.50% and interest is payable in arrears, with an interest-only
period until March 1, 2021 (or September 1,2021 if certain revenue milestones are achieved). Principal payments are due on a straight-line basis after the
interest-only period concludes. The Facility includes customary affirmative covenants, negative covenants and financial covenants, including a minimum liquidity
requirement of $10,000 and minimum product revenues. We used $22,372 of the proceeds of the Facility to repay our senior secured credit facility with Athyrium
Opportunities II Acquisition LP, that was previously due in February 2020, in full.
PART III
The information required by Part III is omitted from this report because we will file a definitive proxy statement within 120 days after the end of our 2018 fiscal
year pursuant to Regulation 14A for our 2019 Annual Meeting of Stockholders, (the "2019 Proxy Statement") and the information to be included in the 2019
Proxy Statement is incorporated by reference.
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The information required by this Item will be included in our 2019 Proxy Statement and is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item will be included in our 2019 Proxy Statement and is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this Item will be included in our 2019 Proxy Statement and is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this Item will be included in our 2019 Proxy Statement and is incorporated herein by reference.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information required by this Item will be included in our 2019 Proxy Statement and is incorporated herein by reference.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
a Financial Statements and Financial Statement Schedules
i
Financial Statements
The financial statements of Apollo Endosurgery, Inc. listed below are set forth in Item 8 of this report for the year ended December 31,
2018:
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations and Comprehensive Loss
Consolidated Statements of Changes in Redeemable Preferred Stock and Stockholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
49
52
53
54
55
55
ii
Financial Statement Schedules
All other schedules are omitted because they are not applicable or the required information is shown in the financial statements or notes
thereto.
b Exhibits
Description of Document
Schedule / Form
File Number
Exhibit
Filing Date
Incorporated by Reference
Agreement and Plan of Merger and Reorganization,
dated as of September 8, 2016, by and among Lpath,
Inc., Lpath Merger Sub, Inc., and Apollo
Endosurgery, Inc.
Asset Purchase Agreement, dated December 17,
2018, by and between Apollo Endosurgery, Inc. and
ReShape Lifesciences Inc.
Amended and Restated Certificate of Incorporation
Amended and Restated Bylaws
Form of Common Stock Certificate of the registrant
Form of Warrant Issued to Investors in the
September 2014 Offering
Form of Warrant issued to Torreya Capital
Apollo Common Stock Purchase Warrant issued to
Athyrium Opportunities II Acquisition LP dated
February 27, 2015
Third Amended and Restated Investors' Rights
Agreement, dated as of September 8, 2016 by and
among Apollo Endosurgery, Inc. and the investors
listed on Exhibit A thereto
2019 Bonus Plan
8-K
8-K
8-K
8-K
10-Q
8-K
S-4
S-4
S-4
8-K
73
001-35706
2.1
September 8, 2016
001-35706
001-35706
001-35706
001-35706
001-35706
333-214059
333-214059
333-214059
2.1
3.1
3.2
4.1
4.1
4.7
4.8
4.9
December 19, 2018
June 13, 2017
June 13, 2017
May 4, 2017
September 22, 2014
October 11, 2016
October 11, 2016
October 11, 2016
001-35706
10.1
March 5, 2019
Exhibit
Number
2.1++
2.2++
3.1
3.2
4.1
4.2
4.3
4.4
4.5
10.1#
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exhibit
Number
10.2#
10.3#
10.4#
10.5#
10.6#
10.7#
10.8#
10.9#
10.10
10.11
10.12
10.13
10.14
10.15#
10.16#
10.17#
Description of Document
Schedule / Form
File Number
Exhibit
Filing Date
Incorporated by Reference
Offer Letter, dated November 19, 2014, between
Apollo Endosurgery, Inc. and Bret Schwartzhoff
Gostout offer letter, dated December 9, 2016
John Molesphini Offer Letter
Form of Change in Control Agreement
Second Amendment to Employment Agreement
dated June 1, 2014 by and between the Company
and Todd Newton
First Amendment to Employment Agreement dated
March 2, 2015 by and between the Company and
Stefanie Cavanaugh
Non-Employee Director Compensation Policy May
2018 amendment
Form of Indemnification Agreement
Loan and Security Agreement, dated March 15, 2019,
by and among the Company, Solar Capital, Ltd, the
guarantors party thereto, and the lenders.
Credit Agreement, dated February 27, 2015, by and
among the Company, Athyrium Opportunities II
Acquisition LP, as administrative agent, the
guarantors party thereto, and the other lenders from
time to time party thereto, as amended or
supplemented.
First Amendment to Office Lease Agreement dated
June 11, 2018, by and between the Company and
DPF Cityview LP
Lease Agreement, dated August 7, 2014, between
Apollo Endosurgery Costa Rica Sociedad de
Responsabilidad Limitada and Zona Franca Coyol,
S.A.
Intellectual Property Assignment Agreement, dated
November 4, 2009, by and between Apollo
Endosurgery, Inc., Olympus Corporation, the
University of Texas Medical Branch, the Johns
Hopkins University, the Mayo Foundation for Medical
Education and Research, the Medical University of
South Carolina Foundation for Research
Development and the Chinese University of Hong
Kong.
Apollo Endosurgery, Inc. 2017 Equity Incentive Plan
Forms of grant notice, stock option agreement and
notice of exercise under the Apollo Endosurgery, Inc.
2017 Equity Incentive Plan
Form of restricted stock unit grant notice and award
agreement under the Apollo Endosurgery, Inc. 2017
Equity Incentive Plan
S-4
10-K
10-Q
8-K
8-K
8-K
10-Q
10-Q
333-214059
001-35706
001-35706
001-35706
001-35706
10.18
10.11
10.2
10.1
10.2
October 11, 2018
March 1, 2018
May 3, 2018
May 30, 2018
May 30, 2018
001-35706
10.3
May 30, 2018
001-35706
001-35706
10.5
10.6
August 8, 2018
August 8, 2018
8-K
001-35706
10.1
March 8, 2017
10-Q
001-35706
10.4
August 8, 2018
331-214059
10.20
October 11, 2016
331-214059
10.21
November 14, 2016
001-35706
001-35706
10.1
10.2
June 13, 2017
June 13, 2017
001-35706
10.3
June 13, 2017
S-4
S-4
8-K
8-K
8-K
74
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exhibit
Number
10.18#
10.18#
21.1
23.1 *
31.1 *
31.2 *
32.1 *
32.2 *
101.INS*
101.SCH*
101.CAL*
Description of Document
Schedule / Form
File Number
Exhibit
Filing Date
Incorporated by Reference
S-4
S-4
S-4
333-214059
333-214059
333-214059
10.2
10.2
21.1
October 11, 2016
October 11, 2016
October 11, 2016
Apollo Endosurgery, Inc. 2016 Equity Incentive Plan
and forms of agreements relating thereto
Apollo Endosurgery, Inc. 2006 Stock Option Plan
and forms of agreements relating thereto
List of Subsidiaries
Consent of KPMG LLP, Independent Public
Accounting Firm to Apollo Endosurgery, Inc.
Certification of Chief Executive Officer pursuant to
Exchange Act Rule, 13a-14(a) and 15d-14(a), as
adopted pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002.
Certification of Chief Financial Officer pursuant to
Exchange Act Rule, 13a-14(a) and 15d-14(a), as
adopted pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002.
Certification of Chief Executive Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer pursuant to 18
U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
XBRL Instance Document
XBRL Taxonomy Extension Schema Document
XBRL Taxonomy Extension Calculation Linkbase
Document
101.DEF*
XBRL Taxonomy Extension Definition Linkbase
Document
101.LAB*
XBRL Taxonomy Extension Label Linkbase
Document
101.PRE*
XBRL Taxonomy Extension Presentation Linkbase
Document
____________
# Management contract or compensation plan or arrangement
* Provided herewith.
+ + Pursuant to Item 601(b)(2) of Regulation S-K, the schedules to the Purchase Agreement (identified therein) have been omitted from this report and will be
furnished supplementally to the SEC upon request.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
ITEM 16. FORM 10-K SUMMARY
None.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
In accordance with the requirements of Section 13 on 15(k) of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf
on March 18, 2019 by the undersigned thereto.
SIGNATURES
APOLLO ENDOSURGERY, INC.
/s/ Todd Newton
Todd Newton
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Todd Newton and Stefanie
Cavanaugh, jointly and severally, his or her attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any
amendments to this report, and to file the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes may do or cause to be done by virtue
hereof.
In accordance with the requirements of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized, on March 18, 2019.
Signature
Title
/s/ Todd Newton
Todd Newton
/s/ Stefanie Cavanaugh
Stefanie Cavanaugh
/s/ Chrissy Citzler-Carr
Chrissy Citzler-Carr
/s/ Richard J. Meelia
Richard J. Meelia
/s/ Rick Anderson
Rick Anderson
Chief Executive Officer and Director
(Principal Executive Officer)
Chief Financial Officer, Treasurer and Secretary
(Principal Financial Officer)
Controller
(Principal Accounting Officer)
Director
Chairman of the Board
March 18, 2019
Date
March 18, 2019
March 18, 2019
March 18, 2019
March 18, 2019
March 18, 2019
March 18, 2019
March 18, 2019
/s/ Matthew S. Crawford
Director
Matthew S. Crawford
/s/ Julie Shimer
Julie Shimer
Director
/s/ William D. McClellan, Jr.
Director
William D. McClellan, Jr.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
/s/ R. Kent McGaughy, Jr.
Director
R. Kent McGaughy, Jr.
/s/ David Pacitti
David Pacitti
Director
/s/ Bruce Robertson, PH.D.
Director
Bruce Robertson, Ph.D.
78
March 18, 2019
March 18, 2019
March 18, 2019
LOAN AND SECURITY AGREEMENT
Solar Draft 3/14/19
THIS LOAN AND SECURITY AGREEMENT (as the same may be amended, restated, modified, or supplemented from time to time, this “ Agreement”)
dated as of March 15, 2019 (the “Effective Date ”) among Solar Capital Ltd., a Maryland corporation with an office located at 500 Park Avenue, 3rd Floor, New
York, NY 10022 (“Solar”), as collateral agent (in such capacity, together with its successors and assigns in such capacity, “ Collateral Agent”), and the lenders
listed on Schedule 1.1 hereof or otherwise a party hereto from time to time including Solar in its capacity as a Lender (each a “ Lender” and collectively, the
“Lenders”), Apollo Endosurgery, Inc., a Delaware corporation (“ Parent”), Apollo Endosurgery US, Inc., a Delaware corporation (“ Apollo Endo”), Apollo
Endosurgery International LLC, a Delaware limited liability company (“Apollo International”), Lpath Therapeutics Inc., a Delaware corporation (“ Lpath”; together
with Parent, Apollo Endo, Apollo International and Lpath, individually and collectively, jointly and severally, “Borrower”), and each Guarantor signatory hereto
and otherwise party hereto from time to time, provides the terms on which the Lenders shall lend to Borrower and Borrower shall repay the Lenders. The parties
agree as follows:
1.
DEFINITIONS AND OTHER TERMS
1.1 Terms. Capitalized terms used herein shall have the meanings set forth in Section 1.3 to the extent defined therein. All other capitalized terms used
but not defined herein shall have the meaning given to such terms in the Code. Any accounting term used but not defined herein shall be construed in
accordance with GAAP and all calculations shall be made in accordance with GAAP. The term “financial statements” shall include the accompanying notes and
schedules. Notwithstanding anything to the contrary contained herein, all financial statements delivered hereunder shall be prepared, and all financial covenants
contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards No. 159 (or any similar
accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof. For all purposes of this Agreement, if GAAP
requires any Person subsequent to the Effective Date to cause operating leases to be treated as capitalized leases or otherwise to be reflected on such Person’s
balance sheet, then such change shall not be given effect hereunder, and those types of leases which were treated as operating leases as of the Effective Date
shall continue to be treated as operating leases that would not otherwise be required to be reflected on such Person’s balance sheet.
1.2 Section References. Any section, subsection, schedule or exhibit references are to this Agreement unless otherwise specified.
1.3 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different
Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence,
such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.
1.4 Definitions. The following terms are defined in the Sections or subsections referenced opposite such terms:
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Allocable Amount”
“Agreement”
“Approved Lender”
“Apollo Endo”
“Apollo International”
“Borrower”
“Claims”
“Collateral Agent”
“Collateral Agent Report”
“Communications”
“Default Rate”
“Effective Date ”
“Event of Default”
“Guarantor” and “Guarantors”
“Guarantor Payment”
“Indemnified Person”
“Lender” and “Lenders”
“Lender Transfer”
“Lpath”
“New Subsidiary”
“Open Source Licenses ”
“Parent”
“Perfection Certificate” and “Perfection Certificates”
“Process Letter”
“Solar”
“Term A Loan”
“Term B Loan”
“Term Loan”
“Termination Date”
“Transfer”
Section 13.7(b)
Preamble
Section 12.1
Preamble
Preamble
Preamble
Section 12.2
Preamble
Exhibit B, Section 5
Section 10
Section 2.3(b)
Preamble
Section 8
Preamble
Section 13.7
Section 12.2
Preamble
Section 12.1
Preamble
Section 6.10
Section 5.2(f)
Preamble
Section 5.1
Section 12.16
Preamble
Section 2.2(a)(i)
Section 2.2(a)(ii)
Section 2.2(a)(ii)
Exhibit B, Section 8
Section 7.1
In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Account” is any “account” as defined in the Code with such additions to such term as may hereafter be made under the Code, and includes, without
limitation, all accounts receivable and other sums owing to any Loan Party.
“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“ACH Letter” is ACH debit authorization in the form of Exhibit F hereto.
“Affiliate” of any Person is a Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person’s senior executive
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
officers, directors, partners and, for any Person that is a limited liability company, that Person’s managers and members.
“Amortization Date” is, March 1, 2021; provided that if the Interest Only Extension Conditions are satisfied on or before December 31, 2020, then
September 1, 2021.
“Anti‑Terrorism Laws” are any laws, rules, regulations or orders relating to terrorism or money laundering, including without limitation Executive Order
No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by
OFAC.
“Apollo CR” is Apollo Endosurgery Costa Rica S.R.L., an organization formed under the laws of Costa Rica.
“Apollo UK” is Apollo Endosurgery UK Ltd, a company incorporated under the laws of England and Wales with registered number 09000573.
“Applicable Rate” means (a) 7.50% plus (b) the London Interbank Offered Rate per annum published by the Intercontinental Exchange Benchmark
Administration Ltd. (the “Service”) (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, as determined by
Collateral Agent) for a term of one month, which determination by Collateral Agent shall be conclusive in the absence of manifest error; provided that if, at any
time, Lenders notify Collateral Agent that Lenders have determined that (x) Lenders are unable to determine or ascertain such rate, (y) the applicable regulator
has made public statements to the effect that the rate published by the Service is no longer used for determining interest rates for loans or (z) by reason of
circumstances affecting the foreign exchange and interbank markets generally, deposits in eurodollars in the applicable amounts or for the relative maturities are
not being offered for such period, then the Applicable Rate shall be equal to an alternate benchmark rate and spread agreed between Collateral Agent and
Borrower (which may include SOFR, to the extent publicly available quotes of SOFR exist at the relevant time), giving due consideration to (i) market convention
or (ii) selection, endorsement or recommendation by a Relevant Governmental Body. Such alternative benchmark rate and spread shall be binding unless the
Required Lenders object within five (5) days following notification of such amendment.
“Approved Fund” is any (i) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business or (ii) any Person (other than a natural person)
which temporarily warehouses loans for any Lender or any entity described in the preceding clause (i) and that, with respect to each of the preceding clauses
(i) and (ii), is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) a Person (other than a natural person) or an Affiliate of a Person (other
than a natural person) that administers or manages a Lender.
“Blocked Person” is any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) a Person owned
or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224,
(c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti‑Terrorism Law, (d) a Person that commits,
threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named a “specially designated national”
or “blocked person” on the most current list published by OFAC or other similar list.
“Borrower’s Books ” are Borrower’s or any of its Subsidiaries’ books and records including ledgers, federal, and state tax returns, records regarding
Borrower’s or its Subsidiaries’ assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any
equipment containing such information.
“Business Day” is any day that is not a Saturday, Sunday or a day on which commercial banks in New York, New York are required or authorized to be
closed.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Cash Equivalents” are (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof
having maturities of not more than one (1) year from the date of acquisition and having the highest rating from either Standard & Poor’s Ratings Group or
Moody’s Investors Service, Inc.; (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard &
Poor’s Ratings Group or Moody’s Investors Service, Inc., (c) certificates of deposit maturing no more than one (1) year after issue provided that the account in
which any such certificate of deposit is maintained is subject to a Control Agreement in favor of Collateral Agent, (d) any money market or similar funds that
exclusively hold any of the foregoing and (e) investments permitted by the Borrower’s investment policy as approved by the Borrower’s board of directors and
agreed to in writing by Collateral Agent in its sole discretion.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided, that, to the
extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code,
the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or
all of the attachment, perfection, or priority of, or remedies with respect to, Collateral Agent’s Lien on any Collateral is governed by the Uniform Commercial
Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such
other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating
to such provisions.
“Collateral” is any and all properties, rights and assets of each Loan Party described on Exhibit A.
“Collateral Account” is, except for Excluded Accounts, any Deposit Account, Securities Account, or Commodity Account, or any other bank account
maintained by any Loan Party or any Subsidiary at any time.
“Collateral Agent” is Solar, not in its individual capacity, but solely in its capacity as collateral agent on behalf of and for the ratable benefit of the
Secured Parties.
“Commitment Percentage” is set forth in Schedule 1.1, as amended from time to time.
“Commodity Account” is any “commodity account” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“Compliance Certificate” is that certain certificate in substantially the form attached hereto as Exhibit D.
“Consolidated Total Assets” means the total assets of Parent and its Subsidiaries calculated in accordance with GAAP on a consolidated basis.
“Contingent Obligation” is, for any Person, any direct or indirect liability, contingent or not, of that Person for (a) any indebtedness, lease, dividend,
letter of credit or other obligation of another such as an obligation directly or indirectly guaranteed, endorsed, co‑made, discounted or sold with recourse by that
Person, or for which that Person is directly or indirectly liable; (b) any obligations for undrawn letters of credit for the account of that Person; and (c) all obligations
from any interest rate, currency or commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a
Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the
ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent
Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith in accordance with GAAP;
but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.
“Contribution Notice” means a contribution notice issued by the UK Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Control Agreement” is any control agreement entered into among the depository institution at which any Loan Party or any of its Subsidiaries
maintains a Deposit Account or the securities intermediary or commodity intermediary at which any Loan Party or any of its Subsidiaries maintains a Securities
Account or a Commodity Account, such Loan Party or such Subsidiary, as applicable, and Collateral Agent pursuant to which Collateral Agent, for the ratable
benefit of the Secured Parties, obtains “control” (within the meaning of the Code) over such Deposit Account, Securities Account, or Commodity Account.
“Copyrights” are any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative
work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.
“Costa Rican Security Documents” means a first degree pledge or movable guarantee (“Garantía Mobiliaria”) issued in accordance with Law 9246 of
Costa Rica (i) over the quota certificates that represent one hundred percent (100%) of the stock capital of Apollo CR and (ii) over the machinery, equipment,
inventory, accounts receivable and assets to be listed in an exhibit to such Garantia Mobiliaria.
“Deposit Account” is any “deposit account” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“Dollars,” “dollars” and “$” each mean lawful money of the United States.
“EBITDA” means, with respect to Borrower and its Subsidiaries, net income plus (i) interest expense, plus (ii) tax expense, plus (iii) depreciation
expense, plus (iv) amortization expense, plus (v) any extraordinary non-cash charges for any applicable period, plus (vi) expenses and fees directly incurred for
such period in connection with the Loan Documents and acquisitions, plus (vii) transition costs related to acquisitions, including without limitation, any transition
services agreement related to such acquisitions, in each case to the extent deducted in the calculation of net income.
“Eligible Assignee” is (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any commercial bank, savings and loan association or
savings bank or any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933, as amended) and which extends
credit or buys loans as one of its businesses, including insurance companies, mutual funds, lease financing companies and commercial finance companies, in
each case, which either (A) has a rating of BBB or higher from Standard & Poor’s Rating Group and a rating of Baa2 or higher from Moody’s Investors Service,
Inc. at the date that it becomes a Lender or (B) has total assets in excess of One Billion Dollars ($1,000,000,000.00), and in each case of clauses (i) through (iv),
which, through its applicable lending office, is capable of lending to Borrower without the imposition of any withholding or similar taxes; provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include, unless an Event of Default has occurred and is continuing, (i) Borrower or any of Borrower’s
Affiliates or Subsidiaries or (ii) a then-current direct competitor of Borrower, as determined by Collateral Agent. Notwithstanding the foregoing, (x) in connection
with any assignment by a Lender as a result of a forced divestiture at the request of any regulatory agency, the restrictions set forth herein shall not apply and
Eligible Assignee shall mean any Person or party and (y) in connection with a Lender’s own financing or securitization transactions, the restrictions set forth
herein shall not apply and Eligible Assignee shall mean any Person or party providing such financing or formed to undertake such securitization transaction and
any transferee of such Person or party upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization
transaction; provided that no such sale, transfer, pledge or assignment under this clause (y) shall release such Lender from any of its obligations hereunder or
substitute any such Person or party for such Lender as a party hereto until Collateral Agent shall have received and accepted an effective assignment agreement
from such Person or party in form satisfactory to Collateral Agent executed, delivered and fully completed by the applicable parties thereto, and shall have
received such other information regarding such Eligible Assignee as Collateral Agent reasonably shall require.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Equipment” is all “equipment” as defined in the Code with such additions to such term as may hereafter be made under the Code, and includes without
limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.
“ERISA” is the Employee Retirement Income Security Act of 1974, as amended, and its regulations.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to
a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as
a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in,
the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Term Loan or Term Loan
Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Term Loan or Term Loan Commitment or (ii) such
Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.5, amounts with respect to such Taxes were payable either to
such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes
attributable to such Recipient’s failure to comply with Section 2.5(f) and (d) any withholding Taxes imposed under FATCA.
“Exigent Circumstance” means any event or circumstance that, in the reasonable judgment of Collateral Agent, imminently threatens the ability of
Collateral Agent to realize upon any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof,
destruction or material waste thereof, or failure of any Loan Party after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or
which, in the judgment of Collateral Agent, could reasonably be expected to result in a material diminution in value of the Collateral.
“Exit Fee Agreement” means that certain Exit Fee Agreement dated as of the Effective Date, between Borrower and Solar, as amended and restated,
supplemented or otherwise modified from time to time.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that
is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations
thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement, treaty or convention
entered into among Governmental Authorities in connection with such Sections of the Internal Revenue Code, and any fiscal or regulatory legislation, rules or
practices adopted pursuant to such intergovernmental agreement, treaty or convention.
“FDA” means the U.S. Food and Drug Administration or any successor thereto or any other comparable Governmental Authority.
“Fee Letter” means that certain Fee Letter dated the Effective Date, between Borrower and Solar, as amended, amended and restated, supplemented or
otherwise modified from time to time.
“Financial Support Direction” means a financial support direction issued by the UK Pensions Regulator under section 43 of the Pensions Act 2004.
“Foreign Currency” means lawful money of a country other than the United States.
“Foreign Lender” means any Lender that is not a U.S. Person.
“Foreign Subsidiary” is a Subsidiary that is not an entity organized under the laws of the United States or any state or territory thereof.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Funding Date” is any date on which a Term Loan is made to or on account of Borrower which shall be a Business Day.
“GAAP” is generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such
other Person as may be approved by a significant segment of the accounting profession in the United States, which are applicable to the circumstances as of the
date of determination.
“General Intangibles” are all “general intangibles” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter
be made under the Code, and includes without limitation, all copyright rights, copyright applications, copyright registrations and like protections in each work of
authorship and derivative work, whether published or unpublished, any patents, trademarks, service marks and, to the extent permitted under applicable law, any
applications therefor, whether registered or not, any trade secret rights, including any rights to unpatented inventions, payment intangibles, royalties, contract
rights, goodwill, franchise agreements, purchase orders, customer lists, route lists, telephone numbers, domain names, claims, income and other tax refunds,
security and other deposits, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or
otherwise), insurance policies (including without limitation key man, property damage, and business interruption insurance), payments of insurance and rights to
payment of any kind.
“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice,
of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” is any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory
body (including, without limitation, the FDA), court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self‑regulatory organization.
“Guarantor” is, individual and collectively, Apollo CR, Apollo UK and any Person providing a Guaranty in favor of Collateral Agent for the benefit of the
Secured Parties (including without limitation pursuant to Section 6.10 or Section 13) on or after the Effective Date.
“Guaranty” is any guarantee of all or any part of the Obligations, as the same may from time to time be amended, restated, modified or otherwise
supplemented.
“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations, (d) non-contingent
obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument,
(e) equity securities of such Person subject to repurchase or redemption other than at the sole option of such Person, (f) obligations secured by a Lien on any
asset of such Person, whether or not such obligation is otherwise an obligation of such Person, (g) “earnouts”, purchase price adjustments, profit sharing
arrangements, deferred purchase money amounts and similar payment obligations or continuing obligations of any nature of such Person arising out of purchase
and sale contracts, (h) all Indebtedness of others guaranteed by such Person, (i) off-balance sheet liabilities and/or pension plan or multiemployer plan liabilities
of such Person, (j) obligations arising under bonus, deferred compensation, incentive compensation or similar arrangements, other than those arising in the
ordinary course of business and (k) Contingent Obligations.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Insolvency Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency
law, including assignments for the benefit of creditors, compositions or proceedings seeking reorganization, arrangement, or other relief.
“Insolvent” means not Solvent.
“Intellectual Property” means each Loan Party’s or any of its Subsidiaries’ right, title and interest in and to the following:
(a) its Copyrights, Trademarks and Patents;
(b) any and all trade secrets and trade secret rights, including, without limitation, any rights to unpatented inventions, know -how, operating manuals;
(c) any and all source code;
(d) any and all design rights which may be available to such Loan Party;
(e) any and all claims for damages by way of past, present and future infringement of any of the foregoing, with the right, but not the obligation, to sue for
and collect such damages for said use or infringement of the Intellectual Property rights identified above; and
(f) all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.
“Intellectual Property Security Agreement” means that certain Intellectual Property Security Agreement dated as of the Effective Date between the
Loan Parties and Collateral Agent, as the same may from time to time be amended, restated, modified or otherwise supplemented.
“Intercompany Subordination Agreement” means that certain Omnibus Intercompany Subordination Agreement, dated as of the date hereof, by and
among Collateral Agent, the Loan Parties, and each of the Loan Parties’ Subsidiaries, as amended, amended and restated, supplemented or otherwise modified
from time to time.
“Interest Only Extension Conditions” are satisfaction of each of the following: (a) no default or Event of Default shall have occurred and is continuing
and (b) on or before December 31, 2020, Borrower shall have provided evidence to Collateral Agent satisfactory to Collateral Agent in its reasonable discretion
that Borrower has achieved product revenues (as determined under GAAP) of greater than or equal to Sixty-Three Million Dollars $63,000,000 on a trailing
twelve-month basis.
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Inventory” is all “inventory” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made under the
Code, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products,
including without limitation such inventory as is temporarily out of any Person’s custody or possession or in transit and including any returned goods and any
documents of title representing any of the above.
“Investment” is any beneficial ownership interest in any Person (including stock, partnership interest or other securities), and any loan, advance or
capital contribution to any Person.
“Key Person” is each of Borrower’s (i) Chief Executive Officer, who is Todd Newton as of the Effective Date, and (ii) Chief Financial Officer, who is
Stefanie Cavanaugh as of the Effective Date.
“Knowledge” means to the “best of” the applicable Loan Party’s knowledge, or with a similar qualification, knowledge or awareness means the actual
knowledge, after reasonable investigation, of the Responsible Officers.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Lender” is any one of the Lenders.
“Lenders” are the Persons identified on Schedule 1.1 hereto and each assignee that becomes a party to this Agreement pursuant to Section 12.1.
“Lenders’ Expenses ” are (a) all reasonable audit fees and expenses, costs, and expenses (including reasonable attorneys’ fees and expenses (whether
generated in house or by outside counsel), as well as appraisal fees, fees incurred on account of lien searches, inspection fees, and filing fees) for preparing,
amending, negotiating and administering the Loan Documents, and (b) all fees and expenses (including attorneys’ fees and expenses, as well as appraisal fees,
fees incurred on account of lien searches, inspection fees, and filing fees) for defending and enforcing the Loan Documents (including, without limitation, those
incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred by Collateral Agent and/or the Lenders in connection with the Loan
Documents.
“Lien” is a claim, mortgage, deed of trust, levy, charge, pledge, security interest, or other encumbrance of any kind, whether voluntarily incurred or
arising by operation of law or otherwise against any property.
“Loan Documents” are, collectively, this Agreement, the Exit Fee Agreement, the Fee Letter, each Control Agreement, the Pledge Agreement, the
Intellectual Property Security Agreement, the UK Security Documents, the Costa Rican Security Documents, the Intercompany Subordination Agreement, the
Perfection Certificates, each Compliance Certificate, the ACH Letter, each Loan Payment Request Form, any Guarantees, each Process Letter, any
subordination agreements, any note, or notes or guaranties executed by the Loan Parties or any other Person, any agreements creating or perfecting rights in
the Collateral (including all insurance certificates and endorsements, landlord consents and bailee consents) and any other present or future agreement entered
into by any Loan Party or any other Person for the benefit of the Lenders and Collateral Agent, as applicable, in connection with this Agreement; all as amended,
restated, or otherwise modified.
“Loan Party” means each Borrower and each Guarantor.
“Loan Payment Request Form” is that certain form attached hereto as Exhibit C.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar
market.
“Material Adverse Change” is (a) a material adverse change in the business, operations or financial condition of each Loan Party and its Subsidiaries,
when taken as a whole; or (b) a material impairment of (i) the prospect of repayment of any portion of the Obligations, (ii) the legality, validity or enforceability of
any Loan Document, (iii) the rights and remedies of Collateral Agent or Lenders under any Loan Document except as the result of the action or inaction of the
Collateral Agent or Lenders or (iv) the validity, perfection or priority of any Lien in favor of Collateral Agent for the benefit of the Secured Parties on any of the
Collateral except as the result of the action or inaction of the Collateral Agent or Lenders.
“Material Agreement” is (a) any contractual arrangement required to be disclosed (including amendments thereto) under regulations promulgated under
the Securities Act of 1933, as amended or the Securities Exchange Act of 1934, as amended and (b) any license, agreement or document of any Loan Party or
any of their Subsidiaries the loss or termination (other than in accordance with the terms of such license or agreement) of which would reasonably be expected
to have a Material Adverse Change, and (c) any license, agreement or document of any Loan Party or any of their Subsidiaries whereby any such party is
reasonably likely to have to transfer, either in kind or in cash, assets or property valued (book or market) at more than One Million Dollars ($1,000,000.00) in the
aggregate.
“Maturity Date” is, for each Term Loan, September 1, 2023.
“Obligations” are each Loan Party’s obligations to pay when due any debts, principal, interest, Lenders’ Expenses, the Prepayment Premium, all fees
under the Fee Letter, and any other amounts such Loan Party owes the
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Collateral Agent or the Lenders now or later, in connection with, related to, following, or arising from, out of or under, this Agreement or, the other Loan
Documents, and including interest accruing after Insolvency Proceedings begin (whether or not allowed) and debts, liabilities, or obligations of any Loan Party
assigned to the Lenders and/or Collateral Agent in connection with this Agreement and the other Loan Documents, and the performance of such Loan Party’s
duties under the Loan Documents.
“OFAC” is the U.S. Department of Treasury Office of Foreign Assets Control.
“OFAC Lists” are, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No.
13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations
of OFAC or pursuant to any other applicable Executive Orders.
“Operating Documents” are, for any Person, such Person’s formation documents, as certified by the Secretary of State (or equivalent agency) of such
Person’s jurisdiction of organization on a date that is no earlier than thirty (30) days prior to the Effective Date, and, (a) if such Person is a corporation, its bylaws
in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a
partnership, its partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan
Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with
respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Patents” means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals,
reissues, re-examination certificates, utility models, extensions and continuations-in-part of the same.
“Payment Date ” is the first (1st) calendar day of each calendar month, commencing on April 1, 2019.
“Permitted Indebtedness” is:
(a) Borrower’s Indebtedness to the Lenders and Collateral Agent under this Agreement and the other Loan Documents;
(b) Indebtedness existing on the Effective Date and disclosed on the Perfection Certificate;
(c) Subordinated Debt;
(d) unsecured Indebtedness to trade creditors;
(e) Indebtedness consisting of capitalized lease obligations and purchase money Indebtedness, in each case incurred by Borrower or any of its
Subsidiaries to finance the acquisition, repair, improvement or construction of fixed or capital assets of such person, provided that (i) the aggregate outstanding
principal amount of all such Indebtedness does not exceed One Million Five Hundred Thousand Dollars ($1,500,000.00) at any time and (ii) the principal amount
of such Indebtedness does not exceed the lower of the cost or fair market value of the property so
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
acquired or built or of such repairs or improvements financed with such Indebtedness (each measured at the time of such acquisition, repair, improvement or
construction is made);
(f) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business, in an aggregate amount not to exceed One
Million Dollars ($1,000,000.00) at any one time outstanding;
(g) Indebtedness in respect of any agreement providing for treasury, depositary, purchasing card or cash management services, bank card products or
services provided in connection therewith, including in connection with any automated clearing house transfers of funds or any similar transactions, netting
services, overdraft protections and other like services, in each case incurred in the ordinary course of business, in an aggregate amount outstanding not to
exceed Five Hundred Thousand Dollars ($500,000.00) at any time;
(h) Indebtedness constituting reimbursement obligations in respect of letters of credit, bank guarantees and similar instruments issued for the account of
the Borrower or any Subsidiary, in an aggregate amount for all such Indebtedness not to exceed One Million Five Hundred Thousand Dollars ($1,500,000.00) at
any one time outstanding;
(i) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of Borrower’s business;
(j) intercompany Indebtedness subject to the Intercompany Subordination Agreement;
(k) other unsecured Indebtedness at any time not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate;
(l) guaranties of items of Permitted Indebtedness (a) through (i) above incurred in the ordinary course of business; and
(m) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through (h) above, provided that
the principal amount thereof is not increased or the terms thereof are not modified to impose materially more burdensome terms upon Borrower, or its
Subsidiary, as the case may be.
“Permitted Investments” are:
(a) Investments disclosed on the Perfection Certificate and existing on the Effective Date;
(b) (i) Investments consisting of cash and Cash Equivalents, and (ii) any Investments permitted by Borrower’s investment policy, as amended from time
to time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Collateral Agent;
(c) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of
Borrower;
(d) Investments consisting of Collateral Accounts in which Collateral Agent has a perfected Lien (subject to the terms of this Agreement) for the ratable
benefit of the Secured Parties;
(e) Investments in connection with Transfers permitted by Section 7.1;
(f) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of
business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employee stock
purchase plans or agreements approved by Borrower’s board of directors; not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate for
(i) and (ii) in any fiscal year;
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(g) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of
delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;
(h) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in
the ordinary course of business; provided that this paragraph (h) shall not apply to Investments of Borrower in any Subsidiary;
(i) Investments (i) by any Loan Party in another Loan Party and (ii) by Subsidiaries in a Loan Party;
(j) so long as no Default or Event of Default has occurred and is continuing, Investments by Borrowers and Subsidiaries in Subsidiaries that are not
Borrowers (it being understood that an equity contribution made by a Person in a Subsidiary that is concurrently made by such Subsidiary to its Subsidiary shall
be deemed a single Investment in the applicable amount for purposes of this clause) in an aggregate amount not to exceed $5,000,000 during the term of this
Agreement;
(k) non-cash Investments in joint ventures, corporate collaborations or strategic alliances in the ordinary course of Borrower’s business consisting of the
non-exclusive licensing of technology, the development of technology or the providing of technical support; and
(l) other Investments not exceeding Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate outstanding at any time.
“Permitted IP Assets” are that certain Intellectual Property described to Collateral Agent or its counsel by Borrower or its counsel on or about February
25, 2019 for purposes of potential future sale or abandonment by Borrower.
“Permitted Licenses” are (A) licenses of over-the-counter software that is commercially available to the public, and (B) non-exclusive licenses for the
use of the Intellectual Property of Borrower or any of its Subsidiaries entered into in the ordinary course of business, provided, that, with respect to each such
license described in clause (B), the license constitutes an arms-length transaction, the terms of which, on their face, do not provide for a sale or assignment of
any Intellectual Property and do not restrict the ability of Borrower or any of its Subsidiaries, as applicable, to pledge, grant a security interest in or lien on, or
assign or otherwise Transfer any Intellectual Property, and (C) exclusive licenses for the use of the Intellectual Property of Borrower or any of its Subsidiaries
entered into in the ordinary course of business, provided, that, with respect to each such license described in this clause (C), the license (i) constitutes an
arms-length transaction, the terms of which, on their face, do not provide for a sale or assignment of any Intellectual Property and do not restrict the ability of
Borrower or any of its Subsidiaries, as applicable, to pledge, grant a security interest in or lien on, or assign or otherwise Transfer any Intellectual Property, (ii) is
limited in territory with respect to a specific geographic country or region (i.e. Japan, Germany, northern China) outside of the United States, and (iii) Borrower
has obtained the consent and acknowledgement of the counterparty to such license for the collateral assignment of such license to the Collateral Agent for the
benefit of the Lenders.
“Permitted Liens” are:
Documents;
(a) Liens existing on the Effective Date and disclosed on the Perfection Certificate or arising under this Agreement and the other Loan
(b) Liens for taxes, fees, assessments or other government charges or levies, either (i) not due and payable or (ii) being contested in good faith and for
which Borrower maintains adequate reserves on Borrower’s Books, provided that no notice of any such Lien has been filed or recorded under the Internal
Revenue Code and the Treasury Regulations adopted thereunder;
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(c) Liens securing Indebtedness permitted under clauses (e), (f), (g) and (h) of the definition of “Permitted Indebtedness,” provided that, in the case of
such clause (e) (i) such liens exist prior to the acquisition of, or attach substantially simultaneous with, or within twenty (20) days after the, acquisition, lease,
repair, improvement or construction of, such property financed or leased by such Indebtedness and (ii) such liens do not extend to any property of Borrower
other than the property (and proceeds thereof) acquired, leased or built, or the improvements or repairs, financed by such Indebtedness;
(d) Liens of carriers, landlords, warehousemen, suppliers, mechanics or other Persons that are possessory in nature arising in the ordinary course of
business so long as such Liens attach only to Inventory, securing liabilities in the aggregate amount not to exceed Five Hundred Thousand Dollars
($500,000.00), and which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings which
proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(e) (i) Liens to secure payment of workers’ compensation, employment insurance, old-age pensions, social security and other like obligations incurred in
the ordinary course of business (other than Liens imposed by ERISA) and (ii) deposits in respect of letters of credit, bank guarantees or similar instruments
issued for the account of Borrower or any Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above in an
amount not to exceed Five Hundred Thousand Dollars ($500,000.00);
(f) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by Liens described in (a) through (c), but any extension, renewal
or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness may not increase;
(g) leases or subleases of real property granted in the ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course
of such Person’s business), and leases, subleases, non-exclusive licenses or sublicenses of personal property (other than Intellectual Property) granted in the
ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), if the leases, subleases, licenses
and sublicenses do not prohibit granting Collateral Agent or any Lender a security interest therein;
(h) banker’s liens, rights of setoff and Liens in favor of financial institutions incurred in the ordinary course of business arising in connection with
Borrower’s deposit accounts or securities accounts held at such institutions solely to secure payment of fees and similar costs and expenses and provided such
accounts are maintained in compliance with Section 6.6(a) hereof;
(i) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.4 or 8.7;
(j) Permitted Licenses
(k) security deposits under real property leases that are made in the ordinary course of business not to exceed Five Hundred Thousand Dollars
($500,000) at any time;
(l) easements, zoning restrictions, rights of way and similar encumbrances on real property imposed by law or arising in the ordinary course of business,
and other minor title imperfections with respect to real property that do not secure any monetary obligations and do not materially impair the value of the affected
property or interfere with the ordinary conduct of business of Borrower or any Subsidiary; and
(m) other Liens not exceeding Twenty-Five Thousand Dollars ($25,000) in the aggregate outstanding at any time; provided that such liens be limited to
specific assets and not all assets or substantially all assets of any Loan Party.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Person” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“Pledge Agreement” means that certain Pledge Agreement dated as of the Effective Date, between the Loan Parties and Agent, as amended, amended
and restated, supplemented or otherwise modified from time to time.
“Prepayment Premium” is, with respect to any Term Loan subject to prepayment, refinancing, substitution or replacement prior to the Maturity Date,
whether by mandatory or voluntary prepayment, acceleration or otherwise (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event
(including the acceleration of claims by operation of law)), an additional fee payable to the Lenders in amount equal to:
(i) for a prepayment, refinancing, substitution or replacement made on or after the Effective Date through and including the first anniversary of the
Effective Date, three percent (3.00%) of the principal amount of such Term Loan prepaid;
(ii) for a prepayment, refinancing, substitution or replacement made after the date which is after the first anniversary of the Effective Date through and
including the second anniversary of the Effective Date, two percent (2.00%) of the principal amount of the Term Loans prepaid; and
(iii) for a prepayment, refinancing, substitution or replacement made after the date which is after the second anniversary of the Effective Date and
prior to the Maturity Date, one percent (1.00%) of the principal amount of the Term Loans prepaid.
Notwithstanding the foregoing, Lenders agree to waive the Prepayment Premium with respect to a prepayment in conjunction with a refinancing of the Term
Loans with Solar or Solar’s Affiliates.
“Pro Rata Share ” is, as of any date of determination, with respect to each Lender, a percentage (expressed as a decimal, rounded to the ninth decimal
place) determined by dividing the outstanding principal amount of Term Loans held by such Lender by the aggregate outstanding principal amount of all Term
Loans.
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.
“Qualified Cash” means the amount of Borrower’s cash and Cash Equivalents held in accounts subject to a Control Agreement in favor of Collateral
Agent.
“Qualified Cash A/P Amount ” means the amount of Borrower’s accounts payable that have not been paid within one hundred twenty days (120) days
from the invoice date of the relevant account payable (other than accounts that are subject to good faith disputes as permitted herein and for which Borrower
maintains adequate reserves in accordance with GAAP).
“Recipient” means (a) the Collateral Agent or (b) any Lender.
“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made under
the Code, and with respect to Apollo CR and Apollo UK, a duly organized legally existing entity under the laws of Costa Rica and England and Wales,
respectively.
“Registration” means any registration, authorization, approval, license, permit, clearance, certificate, and exemption issued or allowed by the FDA or
state pharmacy licensing authorities (including, without limitation, new drug applications, abbreviated new drug applications, biologics license applications,
investigational new drug applications, over-the-counter drug monograph, device pre-market approval applications, device pre-market notifications,
investigational device exemptions, product recertifications, manufacturing approvals, registrations and
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
authorizations, CE Marks, pricing and reimbursement approvals, labeling approvals or their foreign equivalent, controlled substance registrations, and wholesale
distributor permits).
“Regulatory Action” means an administrative, regulatory, or judicial enforcement action, proceeding, investigation or inspection, FDA Form 483 notice of
inspectional observation, warning letter, untitled letter, other notice of violation letter, recall, seizure, Section 305 notice or other similar written communication,
injunction or consent decree, issued by the FDA or a federal or state court.
“Related Persons” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative,
attorney, accountant and each insurance, environmental, legal, financial and other advisor and other consultants and agents of or to such Person or any of its
Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board, the Federal Reserve Bank of New York, and/or a committee officially endorsed or
convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, or any successor thereto.
“Required Lenders” means (i) for so long as all of the Persons that are Lenders on the Effective Date (each an “ Original Lender”) have not assigned or
transferred any of their interests in their Term Loan other than to an Affiliate of such Lender, Lenders holding one hundred percent (100%) of the aggregate
outstanding principal balance of the Term Loan, or (ii) at any time from and after any Original Lender has assigned or transferred any interest in its Term Loan,
Lenders holding at least sixty six percent (66%) of the aggregate outstanding principal balance of the Term Loan and, in respect of this clause (ii), (A) each
Original Lender that has not assigned or transferred any portion of its Term Loan, (B) each assignee or transferee of an Original Lender’s interest in the Term
Loan, but only to the extent that such assignee or transferee is an Affiliate or Approved Fund of such Original Lender, and (C) any Person providing financing to
any Person described in clauses (A) and (B) above; provided, however, that this clause (C) shall only apply upon the occurrence of a default, event of default or
similar occurrence with respect to such financing.
“Requirement of Law” is as to any Person, the organizational or governing documents of such Person, and any law (statutory or common (including
equitable)), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” is any of the President, Chief Executive Officer, or Chief Financial Officer of any Loan Party acting alone.
“Second Draw Period” is the period commencing on approval by each Lender’s credit committee in its sole discretion and ending on the earlier of
Maturity Date and the occurrence of an Event of Default that continues.
“Secured Parties” means the Collateral Agent and the Lenders.
“Securities Account” is any “securities account” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“SOFR” means the daily Secured Overnight Financing Rate provided by the Federal Reserve Bank of New York as the administrator of the benchmark
(or a successor administrator) on the Federal Reserve Bank of New York’s Website.
“Solvent” means, with respect to any Person, that (a) the fair salable value of such Person’s consolidated assets (including goodwill minus disposition
costs) exceeds the fair value of such Person’s liabilities, (b) such Person is not left with unreasonably small capital giving effect to the transactions contemplated
by this Agreement and the other Loan Documents, and (c) such Person is able to pay its debts (including trade debts) as they mature in the ordinary course
(without taking into account any forbearance and extensions related thereto).
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
“Specified Product Revenues” means Borrower’s product revenues (as determined under GAAP) solely with respect to Borrower’s Orbera and
Overstitch products.
“Subordinated Debt” is indebtedness incurred by any Loan Party or any of its Subsidiaries subordinated to all Indebtedness of such Loan Party and/or
its Subsidiaries to the Lenders (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Collateral Agent and
the Required Lenders entered into between Collateral Agent, any Loan Party, and/or any of its Subsidiaries, and the other creditor), on terms acceptable to
Collateral Agent and the Required Lenders in their sole discretion.
“Subsidiary” is, with respect to any Person, any Person of which more than fifty percent (50%) of the voting stock or other equity interests (in the case of
Persons other than corporations) is owned or controlled, directly or indirectly, by such Person or through one or more intermediaries.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan Commitment” is, for any Lender, the obligation of such Lender to make a Term Loan, up to the principal amount shown on Schedule 1.1.
“Term Loan Commitments” means the aggregate amount of such commitments of all Lenders.
“Trademarks” means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like
protections, and the entire goodwill of the business of each Loan Party and each of its Subsidiaries connected with and symbolized by such trademarks.
“UK Pensions Regulator” means the body corporate known as the Pensions Regulator and established by Part 1 of the U.K. Pensions Act 2004.
“UK Security Documents” means the following documents, each in form and substance reasonably satisfactory to the Collateral Agent: (a) that certain
English-law Debenture, dated as of the date of delivery in accordance with Section 6.12(b), between Apollo UK and the Collateral Agent, (b) that certain English-
law Share Charge, dated as of the date of delivery in accordance with Section 6.12(b), between Apollo Endo and the Collateral Agent, and (c) such other
documents incidental to the foregoing documents as the Collateral Agent may reasonably determine necessary.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“Withholding Agent” means Borrower and the Collateral Agent.
2. LOANS AND TERMS OF PAYMENT
2.1 Promise to Pay. Borrower hereby unconditionally promises to pay each Lender, the outstanding principal amount of all Term Loans advanced to
Borrower by such Lender and accrued and unpaid interest thereon and any other amounts due hereunder as and when due in accordance with this Agreement.
2.2 Term Loans.
(a) Availability. (1) Subject to the terms and conditions of this Agreement, the Lenders agree, severally and not jointly, to make term loans to Borrower on
the Effective Date in an aggregate principal amount of Thirty Five Million Dollars ($35,000,000.00) according to each Lender’s Term A Loan Commitment as set
forth on Schedule 1.1 hereto (such term loans are hereinafter referred to singly as a “ Term A Loan”, and collectively as the “ Term A Loans”). After repayment,
no Term Loan may be re-borrowed.
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(ii) Subject to the terms and conditions of this Agreement and conditioned on approval by each Lender’s credit committee in its sole
discretion, the Lenders agree, severally and not jointly, during the Second Draw Period, to make term loans to Borrower in an aggregate principal amount of up
to Fifteen Million Dollars ($15,000,000) (such term loans are hereinafter referred to singly as a “Term B Loan”, and collectively as the “ Term B Loans”; each
Term A Loan or Term B Loan is hereinafter referred to singly as a “Term Loan” and the Term A Loans and the Term B Loans are hereinafter referred to
collectively as the “Term Loans”). After repayment, no Term B Loan may be re‑borrowed.
(b) Repayment. Borrower shall make monthly payments of interest only commencing on the first (1st) Payment Date following the Funding Date of each
Term Loan, and continuing on the Payment Date of each successive month thereafter through and including the Payment Date immediately preceding the
Amortization Date. Borrower agrees to pay, on the Funding Date of each Term Loan, any initial partial monthly interest payment otherwise due for the period
between the Funding Date of such Term Loan and the first Payment Date after such Funding Date. Commencing on the Amortization Date, and continuing on
the Payment Date of each month thereafter, Borrower shall (i) make monthly payments of interest, to each Lender in accordance with its Pro Rata Share, as
calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon the effective rate of interest applicable to the Term
Loan, as determined in Section 2.3(a) plus (ii) make consecutive equal monthly payments of principal to each Lender in accordance with its Pro Rata Share, as
calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (A) the respective principal amounts of such
Lender’s Term Loans outstanding, and (B) a repayment schedule equal to the months remaining from the Amortization Date through the Maturity Date. All
unpaid principal and accrued and unpaid interest with respect to each such Term Loan is due and payable in full on the Maturity Date. The Term Loans may only
be prepaid in accordance with Sections 2.2(c) and 2.2(d).
(c) Mandatory Prepayments. If the Term Loans are accelerated (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event
(including the acceleration of claims by operation of law)), Borrower shall immediately pay to Lenders, payable to each Lender in accordance with its respective
Pro Rata Share, an amount equal to the sum of: (i) all outstanding principal of the Term Loans plus accrued and unpaid interest thereon through the prepayment
date, (ii) any fees payable under the Fee Letter by reason of such prepayment, (iii) the Prepayment Premium, plus (iv) all other Obligations that are due and
payable, including Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts. Notwithstanding (but without duplication with) the
foregoing, on the Maturity Date, if any fees payable under the Fee Letter by reason of such prepayments had not previously been paid in full in connection with
the prepayment of the Term Loans in full, Borrower shall pay to each Lender in accordance with the terms of the Fee Letter. The Prepayment Premium shall also
be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of
foreclosure or by any other means. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS
OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT
PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION.
(d) Permitted Prepayment of Term Loans. Borrower shall have the option to prepay all, but not less than all of the outstanding principal balance of the
Term Loans advanced by the Lenders under this Agreement, provided Borrower (i) provides written notice to Collateral Agent of its election to prepay the Term
Loans at least three (3) Business Days prior to such prepayment, and (ii) pays to the Lenders on the date of such prepayment, payable to each Lender in
accordance with its respective Pro Rata Share, an amount equal to the sum of (A) the outstanding principal of the Term Loans plus accrued and unpaid interest
thereon through the prepayment date, (B) any fees payable under the Fee Letter by reason of such prepayment, (C) the Prepayment Premium, plus (D) all other
Obligations that are due and payable on such prepayment date, including any Lenders’ Expenses and interest at the Default Rate (if any) with respect to any
past due amounts.
2.3 Payment of Interest on the Term Loans.
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(a) Interest Rate. Subject to Section 2.3(b), the principal amount outstanding under the Term Loans shall accrue interest at a floating per annum rate
equal to the Applicable Rate in effect from time to time, which aggregate interest rate shall be determined by Collateral Agent on the third Business Day prior to
the Funding Date of the applicable Term Loan and on the date occurring on the first Business Day of the month prior to each Payment Date occurring thereafter,
which interest shall be payable monthly in arrears in accordance with Sections 2.2(b) and 2.3(e). Except as set forth in Section 2.2(b), such interest shall accrue
on each Term Loan commencing on, and including, the Funding Date of such Term Loan, and shall accrue on the principal amount outstanding under such Term
Loan through and including the day on which such Term Loan is paid in full (or any payment is made hereunder).
(b) Default Rate. Immediately upon the occurrence and during the continuance of an Event of Default, all Obligations shall accrue interest at a fixed per
annum rate equal to the rate that is otherwise applicable thereto plus five percentage points (5.00%) (the “Default Rate” ) . Payment or acceptance of the
increased interest rate provided in this Section 2.3(b) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of Collateral Agent.
(c) 360‑Day Year. Interest shall be computed on the basis of a three hundred sixty (360) day year for the actual number of days elapsed.
(d) Debit of Accounts. Collateral Agent and each Lender may debit (or ACH) any deposit accounts, maintained by Borrower or any of its Subsidiaries,
including the Designated Deposit Account, for principal and interest payments or any other amounts Borrower owes the Lenders under the Loan Documents
when due. Any such debits (or ACH activity) shall not constitute a set‑off.
(e) Payments. Except as otherwise expressly provided herein, all payments by Borrower under the Loan Documents shall be made to the respective
Lender to which such payments are owed, at such Person’s office in immediately available funds on the date specified herein. Unless otherwise provided,
interest is payable monthly on the Payment Date of each month. Payments of principal and/or interest received after 12:00 noon Eastern time are considered
received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment is due the next
Business Day and additional fees or interest, as applicable, shall continue to accrue until paid. All payments to be made by Borrower hereunder or under any
other Loan Document, including payments of principal and interest, and all fees, expenses, indemnities and reimbursements, shall be made without set‑off,
recoupment or counterclaim, in lawful money of the United States and in immediately available funds. Collateral Agent may at its discretion and with prior notice
of at least one (1) Business Day after the occurrence and during the continuance of an Event of Default, initiate debit entries to the Borrower’s account as
authorized on the ACH Letter (i) on each payment date of all Obligations then due and owing, (ii) at any time any payment due and owing with respect to Lender
Expenses, and (iii) upon an Event of Default, any other Obligations outstanding.
2.4 Fees. Borrower shall pay to Collateral Agent and/or Lenders (as applicable) the following fees, which shall be deemed fully earned and non-
refundable upon payment:
(a) Fee Letter. When due and payable under the terms of the Fee Letter, to Collateral Agent and each Lender, as applicable, the fees set forth in the Fee
Letter.
(b) Prepayment Premium. The Prepayment Premium, when due hereunder, to be shared between the Lenders in accordance with their respective Pro
Rata Shares. Borrower expressly agrees (to the fullest extent that each may lawfully do so) that: (i) the Prepayment Premium is reasonable and is the product of
an arm’s length transaction between sophisticated business people, ably represented by counsel; (ii) the Prepayment Premium shall be payable notwithstanding
the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between Collateral Agent, Lenders and the Borrower
giving specific consideration in this transaction for such agreement to pay the Prepayment Premium and (iv) Borrower shall be estopped hereafter from claiming
differently than as agreed to in this paragraph. Borrower expressly acknowledges that its agreement to pay
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the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Term Loan Commitments and make the Term
Loans.
(c) Lenders’ Expenses. All Lenders’ Expenses (including reasonable attorneys’ fees and expenses for documentation and negotiation of this Agreement)
incurred through and after the Effective Date, when due.
2.5 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made
without deduction or withholding for any Taxes, except as required by applicable Requirement of Law. If any applicable Requirement of Law (as determined in
the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent,
then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the
relevant Governmental Authority in accordance with applicable Requirement of Law and, if such Tax is an Indemnified Tax, then the sum payable by the
applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings
applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such
deduction or withholding been made.
(b) Payment of Other Taxes by the Loan Parties . The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable
Requirement of Law, or at the option of the Collateral Agent timely reimburse it for the payment of, any Other Taxes.
(c) Indemnification by the Loan Parties . The Loan Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such
Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of
such payment or liability delivered to Borrower by a Lender (with a copy to the Collateral Agent), or by the Collateral Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(d) Indemnification by the Lenders . Each Lender shall severally indemnify the Collateral Agent, within 10 days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Collateral Agent for such Indemnified
Taxes and without limiting the obligation of the Loan Parties to do so), and (ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or
paid by the Collateral Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Collateral Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Collateral Agent to set off and
apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Collateral Agent to the Lender from any
other source against any amount due to the Collateral Agent under this paragraph (d).
(e) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section,
such Loan Party shall deliver to the Collateral Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Collateral Agent.
(f) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to Borrower and the Collateral Agent, at the time or
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times reasonably requested by Borrower or the Collateral Agent, such properly completed and executed documentation reasonably requested by Borrower or
the Collateral Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by Borrower or the Collateral Agent, shall deliver such other documentation prescribed by applicable Requirement of Law or reasonably requested
by Borrower or the Collateral Agent as will enable Borrower or the Collateral Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of
such documentation (other than such documentation set forth in paragraphs (f)(ii)(1), (ii)(2) and (ii)(4) of this Section) shall not be required if in the Lender's
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially
prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person,
(1) any Lender that is a U.S. Person shall deliver to Borrower and the Collateral Agent on or prior to the date on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Collateral Agent), executed copies of IRS Form W-9
certifying that such Lender is exempt from U.S. federal backup withholding tax;
(2) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the Collateral Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of Borrower or the Collateral Agent), whichever of the following is applicable:
i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the "interest" article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form
W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "business profits" or "other
income" article of such tax treaty;
ii) executed copies of IRS Form W-8ECI;
iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a
certificate reasonably acceptable to Borrower and the Collateral Agent to the effect that such Foreign Lender is not a "bank" within the meaning of Section 881(c)
(3)(A) of the Internal Revenue Code, a "10 percent shareholder" of any Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, or a
"controlled foreign corporation" related to Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code (a "U.S. Tax Compliance Certificate") and
(y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or
iv) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-
8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable;
provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest
exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;
(3) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the Collateral Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of Borrower or the Collateral Agent), executed copies of any other form prescribed by applicable Requirement of Law as a basis for
claiming exemption from or a reduction in U.S. federal withholding Tax, duly
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completed, together with such supplementary documentation as may be prescribed by applicable Requirement of Law to permit Borrower or the Collateral Agent
to determine the withholding or deduction required to be made; and
(4) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as
applicable), such Lender shall deliver to Borrower and the Collateral Agent at the time or times prescribed by applicable Requirement of Law and at such time or
times reasonably requested by Borrower or the Collateral Agent such documentation prescribed by applicable Requirement of Law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Borrower or the Collateral Agent as may be
necessary for Borrower and the Collateral Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such
Lender's obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (4),
"FATCA" shall include any amendments made to FATCA after the date of this Agreement.
(5) Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such form or certification or promptly notify Borrower and the Collateral Agent in writing of its legal inability to do so.
(g) Survival. Each party's obligations under this Section shall survive the resignation or replacement of the Collateral Agent or any assignment of rights
by, or the replacement of, a Lender, the termination of the Term Loan Commitments and the repayment, satisfaction or discharge of all obligations under any
Loan Document.
3. CONDITIONS OF LOANS
3.1 Conditions Precedent to Initial Term Loan. Each Lender’s obligation to make a Term A Loan is subject to the condition precedent that Collateral
Agent and each Lender shall consent to or shall have received, in form and substance satisfactory to Collateral Agent and each Lender, such documents, and
completion of such other matters, as Collateral Agent and each Lender may reasonably deem necessary or appropriate, including, without limitation:
(a) Loan Documents, each duly executed by the Loan Parties and each Subsidiary, as applicable;
(b) a completed Perfection Certificate for Borrower and each of its Subsidiaries;
(c) duly executed Control Agreements with respect to any Collateral Accounts maintained by Borrower or any of its Subsidiaries (other than Apollo UK);
(d) a duly executed Fee Letter;
(e) the Operating Documents and good standing certificates of each Borrower certified by the Secretary of State (or equivalent agency) of such
Borrower’s jurisdiction of organization or formation, each as of a date no earlier than thirty (30) days prior to the Effective Date;
(f) certificates of each Loan Party (other than Apollo UK) in substantially the form of Exhibit E-1, E-2, E-3, E-4 and E-5 hereto executed by the manager
or secretary (as applicable) of such Loan Party with appropriate insertions and attachments, including with respect to (i) the Operating Documents of such Loan
Party (which charter document of such Loan Party shall be certified by the appropriate governmental authority) and (ii) the resolutions adopted by such Loan
Party’s manager or governing board (as applicable) for the purpose of approving the transactions contemplated by the Loan Documents;
(g) certified copies, dated as of date no earlier than thirty (30) days prior to the Effective Date, of financing statement searches, as Collateral Agent shall
request, accompanied by written evidence (including any
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UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the
initial Term Loan, will be terminated or released;
(h) a duly executed legal opinion of Cooley LLP, counsel to the Loan Parties, dated as of the Effective Date;
(i) evidence satisfactory to Collateral Agent and the Lenders that the insurance policies required by Section 6.5 hereof are in full force and effect,
together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Collateral Agent, for the ratable benefit
of the Secured Parties;
(j) resolutions adopted by Apollo UK’s board of directors for the purpose of approving the transaction contemplated by the Loan Documents;
(k) resolutions adopted by the sole shareholder of Apollo UK for the purpose of approving the transactions contemplated by the Loan Documents;
(l) a payoff letter in form and substance satisfactory to Agent and the Lenders evidencing the repayment in full and release of liens with respect to the
Loan Parties’ existing Indebtedness; and
(m) payment of the fees payable under the terms of the Fee Letter and Lenders’ Expenses then due as specified in Section 2.4 hereof.
3.2 Conditions Precedent to all Term Loans. The obligation of each Lender to extend each Term Loan, including the initial Term Loan, is subject to
the following conditions precedent:
(a) receipt by Collateral Agent of an executed Loan Payment Request Form in the form of Exhibit C attached hereto;
(b) the representations and warranties in Section 5 hereof shall be true, accurate and complete in all material respects on the Funding Date of each
Term Loan; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified
by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and
complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the funding of such Term Loan;
(c) in such Lender’s reasonable discretion, there has not been any Material Adverse Change;
(d) No Event of Default or an event that with the passage of time could result in an Event of Default, shall exist; and
(e) payment of the fees and Lenders’ Expenses then due as specified in Section 2.4 hereof.
3.3 Covenant to Deliver. Borrower agrees to deliver to Collateral Agent and the Lenders each item required to be delivered to Collateral Agent under
this Agreement as a condition precedent to any Term Loan. Borrower expressly agrees that a Term Loan made prior to the receipt by Collateral Agent or any
Lender of any such item shall not constitute a waiver by Collateral Agent or any Lender of Borrower’s obligation to deliver such item, and any such Term Loan in
the absence of a required item shall be made in each Lender’s sole discretion.
3.4 Procedures for Borrowing. Subject to the prior satisfaction of all other applicable conditions to the making of a Term Loan set forth in this
Agreement, to obtain a Term Loan (other than the Term Loan funded on the Effective Date), Borrower shall notify the Lenders (which notice shall be irrevocable)
by electronic mail, facsimile, or telephone by 12:00 noon New York City time three (3) Business Days prior to the date the Term Loan is to be made. Together
with any such electronic, facsimile or telephonic notification, Borrower shall deliver to
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Collateral Agent by electronic mail or facsimile a completed Loan Payment Request Form executed by a Responsible Officer or his or her designee. The
Collateral Agent may rely on any telephone notice given by a person whom Collateral Agent reasonably believes is a Responsible Officer or designee.
4. CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest. Each Loan Party (other than Apollo UK) hereby grants Collateral Agent, for the ratable benefit of the Secured Parties, to
secure the payment and performance in full of all of the Obligations, a continuing first priority security interest in, and pledges to Collateral Agent, for the ratable
benefit of the Secured Parties, the Collateral, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products and
supporting obligations (as defined in the Code) in respect thereof. If any Loan Party shall acquire any commercial tort claim (as defined in the Code), such Loan
Party shall grant to Collateral Agent, for the ratable benefit of the Secured Parties, a first priority security interest therein and in the proceeds and products and
supporting obligations (as defined in the Code) thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably
satisfactory to Collateral Agent.
If this Agreement is terminated, Collateral Agent’s Lien in the Collateral shall continue until the Obligations (other than inchoate indemnity obligations)
are repaid in full in cash. Upon payment in full in cash of the Obligations (other than inchoate indemnity obligations) and at such time as the Lenders’ obligation
to extend Term Loans has terminated, Collateral Agent shall, at the sole cost and expense of the Loan Parties, release its Liens in the Collateral and all rights
therein shall revert to the Loan Parties.
4.2 Authorization to File Financing Statements. Each Loan Party hereby authorizes Collateral Agent to file financing statements or take any other
action required to perfect Collateral Agent’s security interests in the Collateral (held for the ratable benefit of the Secured Parties), without notice to such Loan
Party, with all appropriate jurisdictions to perfect or protect Collateral Agent’s interest or rights under the Loan Documents.
5. REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to Collateral Agent and the Lenders as follows:
5.1 Due Organization, Authorization: Power and Authority. Each Loan Party and each of its Subsidiaries is duly existing and in good standing as a
Registered Organization in its jurisdictions of organization or formation and such Loan Party and each of its Subsidiaries is qualified and licensed to do business
and is in good standing in any jurisdiction in which the conduct of its businesses or its ownership of property requires that it be so qualified except where the
failure to do so could not reasonably be expected to have a Material Adverse Change. In connection with this Agreement, Each Loan Party and each of its
Subsidiaries has delivered to Collateral Agent a completed perfection certificate and any updates or supplements thereto on, before or after the Effective Date
(each a “Perfection Certificate” and collectively, the “Perfection Certificates”). Each Loan Party represents and warrants that all the information set forth on
the Perfection Certificates pertaining to such Loan Party and each of its Subsidiaries is accurate and complete.
The execution, delivery and performance by each Loan Party and each of its Subsidiaries of the Loan Documents to which it is, or they are, a party have
been duly authorized, and do not (i) conflict with any of such Loan Party’s or such Subsidiaries’ organizational documents, including its respective Operating
Documents, (ii) contravene, conflict with, constitute a default under or violate any material Requirement of Law applicable thereto, (iii) contravene, conflict or
violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which such Loan Party or such
Subsidiary, or any of their property or assets may be bound or affected, (iv) require any action by, filing, registration, or qualification with, or Governmental
Approval from, any Governmental Authority (except such Governmental Approvals which have already been obtained and are in full force and effect) or are being
obtained pursuant to Section 6.1(b), or (v) constitute an event of default under any material agreement by which such Loan Party, any of its Subsidiaries or any
of their respective properties, is bound. No Loan Party nor any of its Subsidiaries is in default under any agreement
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to which it is a party or by which it or any of its assets is bound in which such default could reasonably be expected to have a Material Adverse Change.
5.2 Collateral.
(a) Each Loan Party and each its Subsidiaries have good title to, have rights in, and the power to transfer each item of the Collateral upon which it
purports to grant a Lien under the Loan Documents, free and clear of any and all Liens except Permitted Liens, and no Loan Party nor any of its Subsidiaries
have any Deposit Accounts, Securities Accounts, Commodity Accounts or other investment accounts other than the Collateral Accounts or the other investment
accounts, if any, described in the Perfection Certificates delivered to Collateral Agent in connection herewith in respect of which such Loan Party or such
Subsidiary has given Collateral Agent notice and taken such actions as are necessary to give Collateral Agent a perfected security interest therein as required
under this Agreement. The Accounts are bona fide, existing obligations of the Account Debtors.
(b) The security interest granted herein is and shall at all times continue to be a first priority perfected security interest in the Collateral, subject only to
involuntary Permitted Liens that, under applicable law, have priority over Collateral Agent’s Lien.
(c) On the Effective Date, and except as disclosed on the Perfection Certificate (i) the Collateral is not in the possession of any third party bailee, and (ii)
no such third party bailee possesses components of the Collateral in excess of Five Hundred Thousand Dollars ($500,000.00).
(d) All Inventory and Equipment is in all material respects of good and marketable quality, free from material defects.
(e) Each Loan Party and each of its Subsidiaries is the sole owner of the Intellectual Property each respectively purports to own, free and clear of all
Liens other than Permitted Liens. Except as noted on the Perfection Certificate (which, upon the consummation of a transaction not prohibited by this
Agreement, may be updated to reflect such transaction), no Loan Party nor any of its Subsidiaries is a party to, nor is bound by, any material license or other
Material Agreement.
(f) No Loan Party nor any of its Subsidiaries has used any software or other materials that are subject to an open-source or similar license (including the
General Public License, Lesser General Public License, Mozilla Public License, or Affero License) (collectively, “Open Source Licenses ”) in a manner that
would cause any software or other materials owned by any Loan Party or used in any Loan Party products to have to be (i) distributed to third parties at no
charge or a minimal charge, (ii) licensed to third parties for the purpose of creating modifications or derivative works, or (iii) subject to the terms of such Open
Source License.
(g) The Permitted IP Assets are immaterial to the business and operations, in each case, financial or otherwise, of any Loan Party and its Subsidiaries,
either taken as a whole or with respect to such entity, and the disposition of such Permitted IP Assets will not have any negative affect on the business and
operations, in each case, financial or otherwise, of such entities.
5.3 Litigation. Except as disclosed on the Perfection Certificate or with respect to which any Loan Party has provided notice as required hereunder,
there are no actions, suits, investigations, or proceedings pending or, to the Knowledge of the Responsible Officers, threatened in writing by or against any Loan
Party or any of its Subsidiaries involving more than Five Hundred Thousand Dollars ($500,000.00).
5.4 No Material Adverse Change; Financial Statements. All consolidated financial statements for the Loan Parties and their consolidated Subsidiaries,
delivered to Collateral Agent fairly present, in conformity with GAAP, and in all material respects the consolidated financial condition of the Loan Parties and
their consolidated Subsidiaries, and the consolidated results of operations of the Loan Parties and their consolidated Subsidiaries. Since December 31, 2017,
there has not been a Material Adverse Change.
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5.5 Solvency. Each Loan Party is Solvent. Each Loan Party and each of its Subsidiaries, when taken as a whole, is Solvent.
5.6 Regulatory Compliance. No Loan Party nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment
company” under the Investment Company Act of 1940, as amended. No Loan Party nor any of its Subsidiaries is engaged as one of its important activities in
extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Each Loan Party and each of its Subsidiaries has
complied in all material respects with the Federal Fair Labor Standards Act. No Loan Party nor any of its Subsidiaries is a “holding company” or an “affiliate” of a
“holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. No
Loan Party nor any of its Subsidiaries has violated any laws, ordinances or rules, the violation of which could reasonably be expected to have a Material Adverse
Change. No Loan Party’s nor any of its Subsidiaries’ properties or assets has been used by such Loan Party or such Subsidiary or, to any Loan Party’s
Knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than in material compliance with
applicable laws. Each Loan Party and each of its Subsidiaries has obtained all consents, approvals and authorizations of, made all declarations or filings with,
and given all notices to, all Governmental Authorities that are necessary to continue their respective businesses as currently conducted.
No Loan Party, any of its Subsidiaries, or any Loan Party’s or its Subsidiaries’ Affiliates or any of their respective agents acting or benefiting in any
capacity in connection with the transactions contemplated by this Agreement is (i) in violation of any Anti‑Terrorism Law, (ii) engaging in or conspiring to engage
in any transaction that evades or avoids, or has the purpose of evading or avoiding or attempts to violate, any of the prohibitions set forth in any Anti‑Terrorism
Law, or (iii) is a Blocked Person. No Loan Party, any of its Subsidiaries, or to the Knowledge of any Loan Party and any of their Affiliates or agents, acting or
benefiting in any capacity in connection with the transactions contemplated by this Agreement, (x) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction relating to, any
property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti‑Terrorism Law.
5.7 Investments. No Loan Party nor any of its Subsidiaries owns any stock, shares, partnership interests or other equity securities except for Permitted
Investments.
5.8 Tax Returns and Payments; Pension Contributions. Each Loan Party and each of its Subsidiaries has timely filed all required tax returns and
reports, and each Loan Party and each of its Subsidiaries, has timely paid all foreign, federal, state, and local taxes, assessments, deposits and contributions
owed by such Loan Party and such Subsidiaries in an amount greater than Fifty Thousand Dollars ($50,000.00), in all jurisdictions in which any such Loan Party
or any such Subsidiary is subject to taxes, including the United States, unless such taxes are being contested in accordance with the next sentence. Each Loan
Party and each of its Subsidiaries, may defer payment of any contested taxes, provided that such Loan Party or such Subsidiary, (a) in good faith contests its
obligation to pay the taxes by appropriate proceedings promptly and diligently instituted and conducted; (b) notifies Collateral Agent of the commencement of,
and any material development in, the proceeding; and (c) adequate reserves or other appropriate provisions are maintained on the books of such Loan Party or
Subsidiary, as applicable, in accordance with GAAP and which do not involve, in the reasonable judgment of the Collateral Agent, any risk of the sale, forfeiture
or loss of any material portion of the Collateral. No Loan Party nor any of its Subsidiaries is aware of any claims or adjustments proposed for any of Loan Party’s
or such Subsidiaries’, prior tax years which could result in additional taxes becoming due and payable by any Loan Party or its Subsidiaries. Each Loan Party
and each of its Subsidiaries have paid all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with
their terms, and no Loan Party nor any of its Subsidiaries have, withdrawn from participation in, and have not permitted partial or complete termination of, or
permitted the occurrence of any other event with respect to, any such plan which could reasonably be expected to result in any liability of such Loan Party or its
Subsidiaries, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
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5.9 Use of Proceeds. Borrower shall use the proceeds of the Term Loans to repay Borrower’s existing Indebtedness, as working capital and to fund its
general business requirements, and not for personal, family, household or agricultural purposes.
5.10 Full Disclosure. No written representation, warranty or other statement of any Loan Party or any of its Subsidiaries in any certificate or written
statement, when taken as a whole, given to Collateral Agent or any Lender, as of the date such representation, warranty, or other statement was made, taken
together with all such written certificates and written statements given to Collateral Agent or any Lender, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained in the certificates or statements not misleading (it being recognized that projections
and forecasts provided by Borrower in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the period or
periods covered by such projections and forecasts may differ from the projected or forecasted results).
5.11 Centre of Main Interests and Establishments . For the purposes of Regulation (EU) 2015/848 of 2 0 M a y 2015 on insolvency proceedings
(recast) No. 1346/2000 on Insolvency Proceedings (the “Regulation”), Apollo UK’s center of main interest (as that term is used in Article 3(1) of the Regulation)
is situated in England and Wales and it has no “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.
5.12 Pensions. (a) Apollo UK is not, nor has it at any time been, an employer (for the purposes of sections 38 to 51 of the UK Pensions Act 2004) of an
occupational pension scheme which is not a money purchase scheme (both terms as defined in the UK Pensions Schemes Act 1993); and (b) Apollo UK is not,
nor has it at any time been, “connected” with or an “associate” of (as those terms are used in sections 38 and 43 of the UK Pensions Act 2004) such an
employer.
6. AFFIRMATIVE COVENANTS
Each Loan Party shall, and shall cause each of its Subsidiaries to, do all of the following:
6.1 Government Compliance.
(a) Other than specifically permitted hereunder, maintain its and all its Subsidiaries’ legal existence and good standing in their respective jurisdictions of
organization and maintain qualification in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Change.
Comply with all laws, ordinances and regulations to which such Loan Party or any of its Subsidiaries is subject, the noncompliance with which could reasonably
be expected to have a Material Adverse Change.
(b) Obtain and keep in full force and effect, all of the material Governmental Approvals necessary for the performance by such Loan Party and its
Subsidiaries of their respective businesses and obligations under the Loan Documents and the grant of a security interest to Collateral Agent for the ratable
benefit of the Secured Parties, in all of the Collateral.
6.2 Financial Statements, Reports, Certificates; Notices.
(a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated and, if
prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the
consolidated operations of Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to
the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s fiscal quarters, a company
prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow
statement covering the
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consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably
acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borrower’s fiscal year or within five (5) days of filing of
the same with the SEC, audited consolidated financial statements covering the consolidated operations of Parent and its consolidated Subsidiaries for such
fiscal year, prepared in accordance with GAAP, accompanied by a report and opinion of an independent certified public accountant of nationally recognized
standing that such consolidated financial statements present fairly in all material respects the financial condition, results of operations and cash flows of the
Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, which report and opinion shall be prepared in accordance with Public Company
Accounting Oversight Board standards and shall not be subject to (i) any “going concern” or like qualification or exception or any qualification or exception as to
the scope of such audit (except for (a) any exception, qualification or explanatory paragraph with respect to or resulting from an upcoming maturity date under
this Agreement occurring within one year from the time such opinion is delivered and (b) qualifications solely relating to changes in accounting principles or
practices reflecting changes in GAAP and required or approved by the Parent’s independent certified public accountants) or (ii) from the fiscal year ending
December 31, 2019 until all Obligations (other than inchoate indemnity obligations) have been satisfied in full, any qualification identifying a material weakness in
internal controls over financial reporting;
(iv) as soon as available after approval thereof by Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after
such approval and (y) January 1 of such year, Borrower’s annual financial projections for the entire current fiscal year as approved by Borrower’s board of
directors; provided that, any revisions to such projections approved by Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no
later than ten (10) Business Days after such approval;
(v) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to any Loan Party’s
security holders or holders of Subordinated Debt (other than materials provided to members of the such Loan Party’s board of directors solely in their capacities
as security holder or holders of Subordinated Debt);
(vi) promptly upon receipt thereof, copies of any audit or other report delivered to the board of directors of Parent (or the audit
committee of such board) by an independent certified public accounting firm in connection with such firm’s audit of the consolidated financial statements or other
engagement regarding internal controls if such report identifies material weaknesses in internal controls over financial reporting;
(vii) [reserved];
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month‑end account
statements for each Collateral Account maintained by the Loan Parties or their Subsidiaries, which statements may be provided to Collateral Agent and each
Lender by such Loan Party or directly from the applicable institution(s);
(ix) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material
correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on
any of the Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to have a material adverse effect on the value of the Intellectual
(xi) written notice delivered no later than (10) days after any Loan Party’s creation of a New Subsidiary in accordance with the terms
of Section 6.10;
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(xii) written notice delivered at least twenty (20) days’ prior to any Loan Party’s (A) adding any new offices or business locations,
including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of
such Loan Party or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing
its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiii) upon any Loan Party becoming aware of the existence and continuance of any Event of Default or event which, with the giving
of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within five (5) Business Days) written notice of such
occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default, and such Loan Party’s proposal regarding how to cure such Event of Default or event;
(xiv) immediate notice if any Loan Party or such Subsidiary has Knowledge that any Loan Party, or any Subsidiary or Affiliate of such
Loan Party, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges
involving money laundering or predicate crimes to money laundering;
Party, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by any Loan
waiver under any Material Agreement; and
(xvi) prompt notice of the execution of any Material Agreement or any material amendment to, modification of, termination of or
(xvii) other information as reasonably requested by Collateral Agent or any Lender.
Notwithstanding the foregoing, financial statements required to be delivered pursuant to clauses (ii), (iii) and (v) above may be delivered electronically
and if so delivered, shall be deemed to have been delivered on the date on which any Loan Party posts such documents, or provides a link thereto, on such
Loan Party’s website on the internet at such Loan Party’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of
each fiscal month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the
Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this
agreement;
(iii) copies of any material Governmental Approvals obtained by any Loan Party or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against any Loan Party or
any of its Subsidiaries, which could reasonably be expected to result in damages or costs to any Loan Party or any of its Subsidiaries of Five Hundred Thousand
Dollars ($500,000.00); and
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Dollars ($500,000.00) individually or in the aggregate in any calendar year.
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Each Loan Party shall, and shall
cause each of its Subsidiaries to, allow, at the sole cost of such Loan Party, Collateral Agent or any Lender, during regular business hours upon reasonable prior
notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine
and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits
shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
6.3 Inventory; Returns. Keep all Inventory in good and marketable condition, free from material defects. Returns and allowances between any Loan
Party, or any of its Subsidiaries, as applicable, and their respective Account Debtors shall follow such Loan Party’s, or such Subsidiary’s, customary practices as
they exist as of the Effective Date. Each Loan Party must promptly notify Collateral Agent and the Lenders of all returns, recoveries, disputes and claims that
involve more than Five Hundred Thousand Dollars ($500,000.00) individually or in the aggregate in any calendar year.
6.4 Taxes; Pensions. Timely file and require each of its Subsidiaries to timely file, all required tax returns and reports and timely pay, and require each
of its Subsidiaries to timely pay, all foreign, federal, state, and local taxes, assessments, deposits and contributions owed by any Loan Party or its Subsidiaries,
except, in each case, as otherwise permitted pursuant to the terms of Section 5.8 hereof, and shall deliver to the Lenders, on demand, appropriate certificates
attesting to such payments, and pay all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with the
terms of such plans.
6.5 Insurance. Keep each Loan Party’s and its Subsidiaries’ business and the Collateral insured for risks and in amounts standard for companies in
such Loan Party’s and its Subsidiaries’ industry and location and as Collateral Agent may reasonably request. Insurance policies shall be in a form, with
companies, and in amounts that are reasonably satisfactory to Collateral Agent and Lenders. All property policies shall have a lender’s loss payable
endorsement showing Collateral Agent as lender loss payee and shall waive subrogation against Collateral Agent, and all liability policies shall show, or have
endorsements showing, Collateral Agent (for the ratable benefit of the Secured Parties), as additional insured. The Collateral Agent shall be named as lender
loss payee and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral, and each provider of any such
insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Collateral Agent, that it will give the
Collateral Agent thirty (30) days prior written notice before any such policy or policies shall be materially altered or canceled. At Collateral Agent’s request, the
Loan Parties shall deliver to the Collateral Agent certified copies of policies and evidence of all premium payments. Proceeds payable under any policy shall, at
Collateral Agent’s option, be payable to Collateral Agent, for the ratable benefit of the Secured Parties, on account of the then-outstanding Obligations.
Notwithstanding the foregoing, (a) so long as no Event of Default has occurred and is continuing, the Loan Parties shall have the option of applying the proceeds
of any casualty policy within ninety (90) days of receipt thereof up to Three Hundred Thousand Dollars ($300,000.00), in the aggregate for all losses under all
casualty policies in any one year, toward the replacement promptly or repair of destroyed or damaged property; provided that any such replaced or repaired
property (i) shall be of equal or like value as the replaced or repaired Collateral and (ii) shall be deemed Collateral in which Collateral Agent has been granted a
first priority security interest, and (b) after the occurrence and during the continuance of an Event of Default, all proceeds payable under such casualty policy
shall, at the option of Collateral Agent, be payable to Collateral Agent, for the ratable benefit of the Lenders, on account of the Obligations. If any Loan Party or
any of its Subsidiaries fails to obtain insurance as required under this Section 6.5 or to pay any amount or furnish any required proof of payment to third persons,
Collateral Agent and/or any Lender may make (but has no obligation to do so), at such Loan Party’s expense, all or part of such payment or obtain such
insurance policies required in this Section 6.5, and take any action under the policies Collateral Agent or such Lender deems prudent.
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6.6 Operating Accounts.
(a) Maintain the Loan Parties’ Collateral Accounts at depositary institutions that have agreed to execute Control Agreements in favor of Collateral Agent
with respect to such Collateral Accounts. The provisions of the previous sentence shall not apply to (i) Deposit Accounts exclusively used for payroll, payroll
taxes and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees; provided that the amount deposited in all such
accounts shall not exceed the aggregate amount reasonably expected to be due and payable for the next two (2) succeeding pay periods, (ii) petty cash
accounts with an aggregate maximum daily balance at any time not in excess of $10,000, (iii) any Deposit Accounts holding only cash and Cash Equivalents or
of Foreign Subsidiaries with an aggregate maximum daily balance for all such accounts, as of the end of each calendar month, not in excess of $2,000,000 and,
(iv) sales tax accounts not in excess of $500,000 and (v) escrow accounts, or fiduciary or trust accounts, in each case for the benefit of unaffiliated third parties;
in each case, as identified to Collateral Agent by Borrower as such in the Perfection Certificate (collectively, clauses (i) through (v), “Excluded Accounts”).
(b) Loan Parties shall provide Collateral Agent ten (10) days’ prior written notice before any Loan Party establishes any Collateral Account. In addition,
for each Collateral Account that any Loan Party, at any time maintains, such Loan Party shall cause the applicable bank or financial institution at or with which
such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to
perfect Collateral Agent’s Lien in such Collateral Account (held for the ratable benefit of the Secured Parties) in accordance with the terms hereunder prior to the
establishment of such Collateral Account. The provisions of the previous sentence shall not apply to Excluded Accounts.
(c) No Loan Party nor any Guarantor shall maintain any Collateral Accounts except Collateral Accounts maintained in accordance with this Section 6.6.
6.7 Protection of Intellectual Property Rights. Each Loan Party and each of its Subsidiaries shall: (a) protect, defend and maintain the validity and
enforceability of its respective Intellectual Property that is material to its business; (b) promptly advise Collateral Agent in writing of a challenge threatened in
writing or known by such Loan Party to the validity, or material infringement by a third party of its respective Intellectual Property; and (c) not allow any of its
respective Intellectual Property material to its respective business to be abandoned, forfeited or dedicated to the public without Collateral Agent’s prior written
consent.
6.8 Litigation Cooperation. Commencing on the Effective Date and continuing through the termination of this Agreement, make available to Collateral
Agent and the Lenders, without expense to Collateral Agent or the Lenders, each Loan Party and each of such Loan Party’s officers, employees and agents and
such Loan Party’s Books, to the extent that Collateral Agent or any Lender may reasonably deem them necessary to prosecute or defend any third‑party suit or
proceeding instituted by or against Collateral Agent or any Lender with respect to any Collateral or relating to such Loan Party.
6.9 Landlord Waivers; Bailee Waivers. In the event that any Loan Party or any of its Subsidiaries, after the Effective Date, intends to add any new
offices or business locations, including warehouses, or otherwise store any portion of the Collateral with, or deliver any portion of the Collateral to, a bailee, in
each case pursuant to Section 7.2, then, in the event that the Collateral at any new location is valued (based on book value) in excess of Five Hundred
Thousand Dollars ($500,000.00) in the aggregate, at Collateral Agent’s election, such bailee or landlord, as applicable, must execute and deliver a bailee waiver
or landlord waiver, as applicable, in form and substance reasonably satisfactory to Collateral Agent prior to the addition of any new offices, business locations, or
any such storage with or delivery to any such bailee, as the case may be.
6.10 Creation/Acquisition of Subsidiaries. In the event any Loan Party or any Subsidiary of any Loan Party creates or acquires any Subsidiary after
the Effective Date, such Loan Party or such Subsidiary shall promptly notify the Collateral Agent and the Lenders of such creation or acquisition. Such
Subsidiary (a “New Subsidiary”) shall, within fifteen (15) Business Days of such creation or acquisition, cause each such New Subsidiary (a) to become either a
co-Borrower hereunder, or a secured guarantor with respect to the Obligations and
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(b) to grant and pledge to Collateral Agent a perfected security interest in 100% of the stock, units or other evidence of ownership held by such Loan Party or its
Subsidiaries.
6.11 Further Assurances. Execute any further instruments and take further action as Collateral Agent or any Lender reasonably requests to perfect or
continue Collateral Agent’s Lien in the Collateral or to effect the purposes of this Agreement.
6.12 Post-Closing Requirements . Deliver to the Collateral Agent each of the following, in each case in form and substance satisfactory to the Collateral
Agent:
(a) Costa Rican Security Documents. Within sixty days (60) days of the Effective Date (or such later date as the Collateral Agent may agree
in its sole discretion):
(i) The Costa Rican Security Documents duly registered before the Costa Rican National Registry; and
(ii) Certifications of corporate resolutions approving and authorizing (i) Apollo CR to act as a Guarantor under this Loan and Security
Agreement and (ii) the execution of the corresponding Loan Documents including but not limited to the Costa Rican Security Documents.
(b) UK Security Documents. Within sixty (60) days of the Effective Date (or such later date as the Collateral Agent may agree in its sole
discretion):
(i) The UK Security Documents;
(ii) a copy of the "PSC Register (within the meaning of section 790C(10) of the Companies Act 2006) of Apollo UK, together with confirmation
from a director of Apollo UK (i)that no “warning notice” or “restrictions notice” (in each case as defined in Schedule 1B of the Companies Act 2006)
has been issued in respect of the Apollo UK shares pledged as Collateral and no circumstances exist at the time of such confirmation which allow
such notice to be issued; or (ii) that Apollo UK is not required to comply with Part 21A of the Companies Act 2006;
(iii) copies of the articles of association and certificate of incorporation of Apollo UK;
(iv) resolutions adopted by Apollo UK’s board of directors for the purpose of approving the transactions contemplated by the UK Security
Documents and the Costa Rican Security Documents;
(v) resolutions adopted by the sole shareholder of Apollo UK for the purpose of approving the transactions contemplated by the UK Security
Documents and the Costa Rican Security Documents;
(vi) a copy of the specimen signature of each person authorized by the resolutions delivered pursuant to Section 6.12(b)(iv) of this
Agreement;
(vii) certificates (as customary in the jurisdiction of Apollo UK and containing specimen signatures) of a director confirming that guaranteeing
or securing the Loans would not cause any guaranteeing or similar limit binding on Apollo UK to be exceeded and certifying that each copy
document relating to it specified in Section 6.12(b)(ii)-(vi) (along with the resolutions delivered on the Effective Date in accordance with Sections
3.1(j) and (k) of this Agreement) are correct, complete and in full force and effect and has not been amended or superseded as at such date;
(viii) an English law legal opinion of English law counsel regarding only the capacity and due executi on of Apollo UK to enter into the relevant
Loan Documents, addressed to the Loan Parties
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and dated as of the same date as the UK Security Documents; in form and substance rea sonably satisfactory to the Collateral Agent;
(i☑) such other security instruments, amendments and documents as the Collateral Agent deems reasonably necessary to evidence that
Apollo UK has granted to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest governed by the laws of the State of
New York in any US property to the extent such property would be included in the definition of Collateral; and
(☑) such other documents as the Collateral Agent may reasonably request.
(c) Borrower agrees to deliver landlord waivers, in form and substance reasonably satisfactory to Collateral Agent, with respect to Borrower’s
leased locations within 60 days of the Effective Date (as may be extended by the Collateral Agent in its sole discretion).
(d) Borrower agrees to deliver bailee waivers, in form and substance reasonably satisfactory to Collateral Agent, with respect to bailees located
at the following locations within 60 days of the Effective Date (as may be extended by the Collateral Agent in its sole discretion):
(i) 1840 Outer Loop, Louisville, KY 40219; and
(ii) 5079 33rd Street SE, Grand Rapids, MI 49512.
(e) Borrower agrees to deliver insurance endorsements, in each case satisfying the requirements of Section 6.5 within 30 days of the Effective
Date (as may be extended by the Collateral Agent in its sole discretion).
(f) Borrower agrees to deliver Process Letters, in each case satisfying the requirements of Section 12.16 within 30 days of the Effective Date (as
may be extended by the Collateral Agent in its sole discretion).
(g) Borrower agrees to deliver a fully-executed Control Agreement, in form and substance reasonably satisfactory to Collateral Agent, from
Merrill Lynch Wealth Management (or any other Person who then holds Borrower’s Securities Account) with regard to Borrower’s Securities Account
within 30 days of the Effective Date (as may be extended by the Collateral Agent in its sole discretion).
7. NEGATIVE COVENANTS
No Loan Party shall, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Required Lenders:
7.1 Dispositions. Convey, sell, lease, transfer, assign, dispose of, license (collectively, “Transfer”), or permit any of its Subsidiaries to Transfer, all or
any part of its business or property, except for Transfers (a) of Inventory in the ordinary course of business; (b) of worn‑out, surplus, or obsolete Equipment;
(c) in connection with Permitted Liens, Permitted Investments and Permitted Licenses; (d) of cash or Cash Equivalents in the ordinary course of business,
subject to the restrictions and limitations set forth in the Loan Documents; (e) Transfers to any Loan Party or any of its Subsidiaries that are Loan Parties from
any Loan Party; provided that such Transfer complies with clause (i) of “Permitted Investments”; (f) sales or discounting of delinquent accounts in the ordinary
course of business pursuant to transactions not prohibited by this Agreement; (g) the Permitted IP Assets as long as the representation in Section 5.2(g) remains
true and correct in all respects as of such date of disposition or transfer, and (h) other Transfers in the aggregate not to exceed Two Hundred Fifty Thousand
Dollars ($250,000.00) per fiscal year.
7.2 Changes in Business, Management, Ownership, or Business Locations. (a) Engage in or permit any of its Subsidiaries to engage in any
business other than the businesses engaged in by such Loan Party or
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such Subsidiary, as applicable, as of the Effective Date or reasonably related thereto; (b) liquidate or dissolve; or (c) (i) permit any Key Person to cease being
actively engaged in the management of Borrower unless written notice thereof is provided to each Lender within ten (10) days of such cessation, or (ii) enter into
any transaction or series of related transactions in which (A) the stockholders of any Loan Party who were not stockholders immediately prior to the first such
transaction own more than 35% of the voting stock of such Loan Party immediately after giving effect to such transaction or related series of such transactions
and (B) except as permitted by Section 7.3, any Loan Party ceases to own, directly or indirectly, 100% of the ownership interests in each Subsidiary of such Loan
Party. No Loan Party shall, and shall not permit any of its Subsidiaries to, without at least thirty (30) days’ prior written notice to Collateral Agent: (A) add any new
offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars
($500,000.00) in assets or property of any Loan Party or any of its Subsidiaries, as applicable); (B) change its respective jurisdiction of organization, (C) except
as permitted by Section 7.3, change its respective organizational structure or type, (D) change its respective legal name, or (E) change any organizational
number(s) (if any) assigned by its respective jurisdiction of organization.
7.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other Person, or acquire, or
permit any of its Subsidiaries to acquire, all or substantially all of the capital stock, shares or property of another Person; provided, that a Subsidiary may merge
or consolidate into another Subsidiary (provided such surviving Subsidiary is a “co‑Borrower” hereunder or has provided a secured Guaranty of Borrower’s
Obligations hereunder in accordance with Section 6.10) or with (or into) a Loan Party provided such Loan Party is the surviving legal entity, and as long as no
Event of Default is occurring prior thereto or arises as a result therefrom.
7.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so, other than Permitted Indebtedness.
7.5 Encumbrance. Create, incur, allow, or suffer any Lien on any of its property, or assign or convey any right to receive income, including the sale of
any Accounts, or permit any of its Subsidiaries to do so, except for Permitted Liens, or permit any Collateral not to be subject to the first priority security interest
granted herein (except for Permitted Liens), or enter into any agreement, document, instrument or other arrangement (except with or in favor of Collateral Agent,
for the ratable benefit of the Secured Parties) with any Person which directly or indirectly prohibits or has the effect of prohibiting any Loan Party, or any of its
Subsidiaries, from assigning, mortgaging, pledging, granting a security interest in or upon, or encumbering any of such Loan Party’s or such Subsidiary’s
Intellectual Property, except as is otherwise permitted in Section 7.1 hereof and the definition of “Permitted Liens”.
7.6 Maintenance of Collateral Accounts. With respect to any Loan Party, maintain any Collateral Account except pursuant to the terms of Section 6.6
hereof.
7.7 Restricted Payments. (a) Declare or pay any dividends (other than dividends payable solely in capital stock) or make any other distribution or
payment in respect of or redeem, retire or purchase any capital stock (a “Restricted Payment”) (other than (i) the declaration or payment of dividends to any
Loan Party, (ii) so long as no Event of Default or event that with the passage of time would result in an Event of Default exists or would result therefrom, the
declaration or payment of any dividends solely in the form of equity securities, (iii) purchases or repurchases pursuant to the terms of employee stock purchase
plans, employee restricted stock agreements, stockholder rights plans, director or consultant stock option plans, or similar plans, (iv) purchases for value of any
rights distributed in connection with any stockholder rights plan; (v) purchases of capital stock pledged as collateral for loans to employees; purchases of capital
stock in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of
withholding tax obligations; (vi) purchases of fractional shares of capital stock arising out of stock dividends, splits or combinations or business combinations or
in connection with exercises or conversions of options, warrants and other convertible securities; (vii) conversions of convertible securities into other securities
pursuant to the terms of such convertible securities or otherwise in exchange thereof; (viii) dividends and distributions by any Subsidiary to any Loan Party and
(ix) other Restricted Payments; provided that, the aggregate amount of all Restricted Payments in the foregoing clauses (i)-(ix) above shall not exceed One
Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) in the aggregate), (b)
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
other than the Obligations in accordance with the terms hereof, purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount
payable in respect of any Indebtedness prior to its scheduled maturity unless being replaced with Indebtedness of at least the same principal amount and such
new Indebtedness is Permitted Indebtedness, or (c) be a party to or bound by an agreement that restricts a Subsidiary from paying dividends or otherwise
distributing property to any Loan Party.
7.8 Investments. Directly or indirectly make any Investment other than Permitted Investments, or permit any of its Subsidiaries to do so other than
Permitted Investments.
7.9 Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of any Loan Party or any of
its Subsidiaries, except for (a) transactions that are in the ordinary course of such Loan Party’s or such Subsidiary’s business, upon fair and reasonable terms
that are no less favorable to such Loan Party or such Subsidiary than would be obtained in an arm’s length transaction with a non‑affiliated Person,
(b) Subordinated Debt or equity investments by any Loan Party’s investors in such Loan Party or its Subsidiaries, (c) intercompany transactions expressly
permitted by Section 7.1, 7.3, 7.4, 7.7 or 7.8 , (d) normal and reasonable compensation and reimbursement of expenses of officers and directors in the ordinary
course of business approved by such Loan Party’s or such Subsidiary’s board of directors, (e) employment arrangements with executive officers approved by the
Parent’s Board of Directors and entered into in the ordinary course of business, and (f) equity financings of the Parent that are permitted by the terms of this
Agreement.
7.10 Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under the terms of the subordination, intercreditor, or
other similar agreement to which such Subordinated Debt is subject, or (b) amend any provision in any document relating to the Subordinated Debt which would
increase the amount thereof or adversely affect the subordination thereof to Obligations owed to the Lenders; provided, that, this Section 7.10 shall not apply to
any conversion of Indebtedness into Equity Interests.
7.11 Compliance. (a) Become an “investment company” or a company controlled by an “investment company”, under the Investment Company Act of
1940, as amended, or undertake as one of its important activities extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System), or use the proceeds of any Term Loan for that purpose; (b) fail to meet the minimum funding requirements of
ERISA; (c) permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; (d) fail to comply with the Federal Fair Labor Standards Act or
violate any other law or regulation, if the violation could reasonably be expected to have a Material Adverse Change, or permit any of its Subsidiaries to do so; or
(e) withdraw or permit any Subsidiary to withdraw from participation in, permit partial or complete termination of, or permit the occurrence of any other event with
respect to, any present pension, profit sharing and deferred compensation plan which could reasonably be expected to result in any liability of any Loan Party or
any of its Subsidiaries, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
7.12 Compliance with Anti-Terrorism Laws. No Loan Party nor any of its Subsidiaries shall, nor shall any Loan Party or any of its Subsidiaries permit
any Affiliate to, directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with any Person listed on the OFAC Lists. No
Loan Party nor any of its Subsidiaries shall, nor shall any Loan Party or any of its Subsidiaries, permit any Affiliate to, directly or indirectly, (a) conduct any
business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds,
goods or services to or for the benefit of any Blocked Person, (b) deal in, or otherwise engage in any transaction relating to, any property or interests in property
blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti-Terrorism Law, or (c) engage in or conspire to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No.
13224 or other Anti-Terrorism Law.
7.13 Financial Covenants.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
(a) Minimum Liquidity Requirement . Permit, at any time prior to the Minimum Liquidity Release Date, Qualified Cash to be less than an amount equal
to (i) Ten Million Dollars ($10,000,000.00) plus (ii) the Qualified Cash A/P Amount; provided that if on or before September 30, 2021, Borrower provides
evidence satisfactory to Agent that Borrower has achieved EBITDA of at least $5,000,000 for the trailing six-month period ending September 30, 2021, then
Borrower shall not be required to maintain minimum Qualified Cash following the date such evidence is provided (the “Minimum Liquidity Release Date”).
(b) Minimum Specified Product Revenue. Permit Specified Product Revenue, measured on a trailing six-month basis on the last day of each month, to
be lower than the following:
Month-End
June 2019 and each
month through and
including December
2019
January 2020 and each
month through and
including December
2021
January 2022 and each
month thereafter
Specified Product
Revenue
85% of Total Product
Revenue as indicated in a
plan submitted by
Borrower to Lenders prior
to the Effective Date
80% of projected
Specified Product
Revenue in accordance
with an annual plan
submitted by Borrower to
Lenders pursuant to
Section 6.2(a)(iv), such
plan to be approved by
Borrower’s board of
directors and by Agent
and Lenders in writing
75% of projected
Specified Product
Revenue in accordance
with an annual plan
submitted by Borrower to
Lenders pursuant to
Section 6.2(a)(iv), such
plan to be approved by
Borrower’s board of
directors and by Agent
and Lenders in writing
7.14 Subsidiaries. Permit (a) any non-Loan Party Subsidiary to comprise greater than $2,000,000 of Parent’s Consolidated Total Assets, (b) all such
non-Loan Party Subsidiaries, in the aggregate, to have contributed greater $12,000,000 of Parent’s Consolidated Total Assets or (c) Apollo CR to have
contributed greater than fifteen percent (15%) of Parent’s Consolidated Total Assets; provided, that assets of Apollo CR and Apollo UK shall not be counted for
purposes of clause (a) or (b) from and after the Effective Date as long and solely if such assets are subject to the lien and security interest of the Collateral Agent
pursuant to the Loan Documents.
7.15 Material Agreements. No Loan Party nor any of its Subsidiaries shall, without the consent of Collateral Agent, (a) enter into a Material Agreement,
or (b) materially amend a Material Agreement, in each case in a manner materially adverse to the Lenders.
7.16 COMI. Neither Apollo UK nor any other Subsidiary of any Loan Party whose jurisdiction of incorporation or organization is in a member state of the
European Union shall change its “centre of main interests” (as that term is used in Article 3(1) of the Regulation).
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
8. EVENTS OF DEFAULT
Any one of the following shall constitute an event of default (an “ Event of Default”) under this Agreement:
8.1 Payment Default. Any Loan Party fails to (a) make any payment of principal or interest on any Term Loan on its due date, or (b) pay any other
Obligation within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day grace period shall not apply to payments
due on the Maturity Date or the date of acceleration pursuant to Section 9.1 (a) hereof);
8.2 Covenant Default.
(a) Any Loan Party or any of its Subsidiaries fails or neglects to perform any obligation in Sections 6.2 (Financial Statements, Reports, Certificates), 6.4
(Taxes), 6.5 (Insurance), 6.6 (Operating Accounts), 6.7 (Protection of Intellectual Property Rights), 6.9 (Landlord Waivers; Bailee Waivers), 6.10
(Creation/Acquisition of Subsidiaries) or such Loan Party or any such Subsidiary violates any provision in Section 7; or
(b) Any Loan Party, or any of its Subsidiaries, fails or neglects to perform, keep, or observe any other term, provision, condition, covenant or agreement
contained in this Agreement or any other Loan Document to which such person is a party, and as to any default (other than those specified in this Section 8)
under such other term, provision, condition, covenant or agreement that can be cured, has failed to cure the default within fifteen (15) days after the occurrence
thereof; provided, however, that if the default cannot by its nature be cured within the fifteen (15) day period or cannot after diligent attempts by such Loan Party
or such Subsidiary, as applicable, be cured within such fifteen (15) day period, and such default is likely to be cured within a reasonable time, then such Loan
Party shall have an additional period (which shall not in any case exceed thirty (30) days) to attempt to cure such default, and within such reasonable time period
the failure to cure the default shall not be deemed an Event of Default (but no Term Loans shall be made during such cure period).
8.3 Material Adverse Change. A Material Adverse Change has occurred;
8.4 Attachment; Levy; Restraint on Business.
(a) (i) The service of process seeking to attach, by trustee or similar process, any funds of any Loan Party or any of its Subsidiaries or of any entity
under control of any Loan Party or its Subsidiaries on deposit with any institution at which such Loan Party or any of its Subsidiaries maintains a Collateral
Account, or (ii) a notice of lien, levy, or assessment (other than a Permitted Lien) is filed against any Loan Party or any of its Subsidiaries or their respective
assets by any government agency, and the same under subclauses (i) and (ii) of this clause (a) are not, within ten (10) days after the occurrence thereof,
discharged or stayed (whether through the posting of a bond or otherwise); and
(b) (i) any material portion of any Loan Party’s or any of its Subsidiaries’ assets is attached, seized, levied on, or comes into possession of a trustee or
receiver, or (ii) any court order enjoins, restrains, or prevents any Loan Party or any of its Subsidiaries from conducting any part of its business;
8.5 Insolvency. (a) any Loan Party or any of its Subsidiaries is or becomes Insolvent; (b) any Loan Party or any of its Subsidiaries begins an Insolvency
Proceeding; or (c) an Insolvency Proceeding is begun against any Loan Party or any of its Subsidiaries and not dismissed or stayed within forty‑five (45) days
(but no Term Loans shall be extended while any Loan Party or any Subsidiary is Insolvent and/or until any Insolvency Proceeding is dismissed);
8.6 Other Agreements. There is a default in any agreement to which any Loan Party or any of its Subsidiaries is a party with a third party or parties
resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of Five
Hundred Thousand Dollars ($500,000.00) or that could reasonably be expected to have a Material Adverse Change;
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
8.7 Judgments. One or more judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at least Five
Hundred Thousand Dollars ($500,000.00) (not covered by independent third-party insurance as to which (a) the applicable Loan Party reasonably believes such
insurance carrier will accept liability, (b) the applicable Loan Party or its Subsidiary has submitted such claim to such insurance carrier and (c) liability has not
been rejected by such insurance carrier) shall be rendered against any Loan Party or any of its Subsidiaries and shall remain unsatisfied, unvacated, or unstayed
for a period of twenty (20) days after the entry thereof;
8.8 Misrepresentations. Any Loan Party or any of its Subsidiaries or any Person acting for any Loan Party or any of its Subsidiaries makes any
representation, warranty, or other statement now or later in this Agreement, any Loan Document delivered to Collateral Agent and/or the Lenders or to induce
Collateral Agent and/or the Lenders to enter this Agreement or any Loan Document, and such representation, warranty, or other statement, when taken as a
whole, is incorrect in any material respect when made;
8.9 Subordinated Debt. A default or breach occurs under any subordination agreement to which any Loan Party or any of its Subsidiaries and Collateral
Agent is a party, or any creditor that has signed such an agreement with Collateral Agent or the Lenders breaches any terms of such agreement;
8.10 Guaranty. (a) Any Guaranty (including the guaranty set forth in Section 13) terminates or ceases for any reason to be in full force and effect except
as permitted by this Agreement; (b) any Guarantor does not perform any obligation or covenant under any Guaranty, beyond any applicable cure or grace
period; (c) any circumstance described in Section 8 occurs with respect to any Guarantor;
8.11 Governmental Approvals; FDA Action. (a) Any Governmental Approval shall have been revoked, rescinded, suspended, modified in an adverse
manner, or not renewed in the ordinary course for a full term and such revocation, rescission, suspension, modification or non -renewal has resulted in or could
reasonably be expected to result in a Material Adverse Change; or (b) (i) the FDA, DOJ or other Governmental Authority initiates a Regulatory Action or any
other enforcement action against any Loan Party or any of its Subsidiaries or any supplier of any Loan Party or any of its Subsidiaries that causes any Loan
Party or any of its Subsidiaries to recall, withdraw, remove or discontinue manufacturing, distributing, and/or marketing any of its products, even if such action is
based on previously disclosed conduct, which could reasonably be expected to result in liability and expense to any Loan Party or any of its Subsidiaries of Five
Hundred Thousand Dollars ($500,000.00) or more; (ii) the FDA issues a warning letter to any Loan Party or any of its Subsidiaries with respect to any of its
activities or products which could reasonably be expected to result in a Material Adverse Change; (iii) any Loan Party or any of its Subsidiaries conducts a
mandatory or voluntary recall which could reasonably be expected to result in liability and expense to any Loan Party or any of its Subsidiaries of Five Hundred
Thousand Dollars ($500,000.00) or more; (iv) any Loan Party or any of its Subsidiaries enters into a settlement agreement with the FDA, DOJ or other
Governmental Authority that results in aggregate liability as to any single or related series of transactions, incidents or conditions, of Five Hundred Thousand
Dollars ($500,000.00) or more, or that could reasonably be expected to result in a Material Adverse Change, even if such settlement agreement is based on
previously disclosed conduct; or (v) the FDA revokes any authorization or permission granted under any Registration, or any Loan Party or any of its
Subsidiaries withdraws any Registration, that could reasonably be expected to result in a Material Adverse Change.
8.12 Lien Priority. Except as the result of the action or inaction of the Collateral Agent or the Lenders, any Lien created hereunder or by any other Loan
Document shall at any time fail to constitute a valid and perfected Lien on any of the Collateral purported to be secured thereby, subject to no prior or equal Lien,
other than Permitted Liens arising as a matter of applicable law or that are permitted to have priority pursuant to this Agreement.
8.13 Pensions. The UK Pensions Regulator issues a Financial Support Direction or a Contribution Notice is issued to Apollo UK or any Subsidiary
which is a company organized under the laws of England and Wales, unless the aggregate liability of Apollo UK and such Subsidiaries under all Financial
Support Directions and Contributions Notices is less than Five Hundred Thousand Dollars ($500,000).
9. RIGHTS AND REMEDIES
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
9.1 Rights and Remedies.
(a) Upon the occurrence and during the continuance of an Event of Default, Collateral Agent may, and at the written direction of Required Lenders
shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to Borrower, (ii) by notice to Borrower declare all
Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs all Obligations shall be immediately due and payable without
any action by Collateral Agent or the Lenders) or (iii) by notice to Borrower suspend or terminate the obligations, if any, of the Lenders to advance money or
extend credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders (but if an
Event of Default described in Section 8.5 occurs all obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this
Agreement or under any other agreement between Borrower and Collateral Agent and/or the Lenders shall be immediately terminated without any action by
Collateral Agent or the Lenders).
(b) Without limiting the rights of Collateral Agent and the Lenders set forth in Section 9.1(a) above, upon the occurrence and during the continuance of
an Event of Default, Collateral Agent shall have the right and at the written direction of the Required Lenders shall, without notice or demand, to do any or all of
the following:
(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;
(ii) make a demand for payment upon any Guarantor pursuant to Section 13 or any other Guaranty delivered by such Guarantor;
(iii) apply to the Obligations any (A) balances and deposits of the Loan Parties that Collateral Agent or any Lender holds or controls,
(B) any amount held or controlled by Collateral Agent or any Lender owing to or for the credit or the account of Borrower, or (C) amounts received from any
Guarantors in accordance with the respective Guaranty pursuant to Section 13 or otherwise delivered by such Guarantor; and/or
(iv) commence and prosecute an Insolvency Proceeding or consent to any Loan Party commencing any Insolvency Proceeding.
(c) Without limiting the rights of Collateral Agent and the Lenders set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the
continuance of an Event of Default, Collateral Agent shall have the right and at the written direction of the Required Lenders shall, without notice or demand, to
do any or all of the following:
considers advisable, notify any Person owing Borrower money of Collateral Agent’s security interest in such funds, and verify the amount of such account;
(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Collateral Agent
(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its Liens in the
Collateral (held for the ratable benefit of the Secured Parties). The Loan Parties shall assemble the Collateral if Collateral Agent requests and make it available
at such location as Collateral Agent reasonably designates. Collateral Agent may enter premises where the Collateral is located, take and maintain possession
of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all
expenses incurred. Each Loan Party grants Collateral Agent a license to enter and occupy any of its premises, without charge, to exercise any of Collateral
Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, any of the Collateral. Collateral
Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, each Loan Party’s and each of its Subsidiaries’ labels, patents,
copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it
pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Collateral Agent’s exercise of its
rights under this Section 9.1, each Loan Party’s
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Collateral Agent, for the benefit of the Lenders;
(iv) place a “hold” on any Collateral Account maintained with Collateral Agent or any Lender or otherwise in respect of which a
Control Agreement has been delivered in favor of Collateral Agent (for the ratable benefit of the Secured Parties) and/or deliver a notice of exclusive control, any
entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of Borrower’s Books;
(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any
competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of any Loan Party or any
of its Subsidiaries; and
Documents or at law or equity, including all remedies provided under the Code (including disposal of the Collateral pursuant to the terms thereof).
(vii) subject to clauses 9.1(a) and (b), exercise all rights and remedies available to Collateral Agent and each Lender under the Loan
Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Collateral Agent shall have the right to exercise
any and all remedies referenced in this Section 9.1 without the written consent of Required Lenders following the occurrence of an Exigent Circumstance.
9.2 Power of Attorney. Each Loan Party hereby irrevocably appoints Collateral Agent as its lawful attorney-in-fact, exercisable upon the occurrence and
during the continuance of an Event of Default, to: (a) endorse any Loan Party’s or any of its Subsidiaries’ name on any checks or other forms of payment or
security; (b) sign any Loan Party’s or any of its Subsidiaries’ name on any invoice or bill of lading for any Account or drafts against Account Debtors; (c) settle
and adjust disputes and claims about the Accounts of the Loan Parties directly with the applicable Account Debtors, for amounts and on terms Collateral Agent
determines reasonable; (d) make, settle, and adjust all claims under the Loan Parties’ insurance policies; (e) pay, contest or settle any Lien, charge,
encumbrance, security interest, and adverse claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge
the same; and (f) transfer the Collateral into the name of Collateral Agent or a third party as the Code or any applicable law permits. Each Loan Party hereby
appoints Collateral Agent as its lawful attorney-in-fact to sign any Loan Party’s or any of its Subsidiaries’ name on any documents necessary to perfect or
continue the perfection of Collateral Agent’s security interest in the Collateral regardless of whether an Event of Default has occurred until all Obligations (other
than inchoate indemnity obligations) have been satisfied in full and Collateral Agent and the Lenders are under no further obligation to make extend Term Loans
hereunder. Collateral Agent’s foregoing appointment as any Loan Party’s or any of its Subsidiaries’ attorney in fact, and all of Collateral Agent’s rights and
powers, coupled with an interest, are irrevocable until all Obligations (other than inchoate indemnity obligations) have been fully repaid and performed and
Collateral Agent’s and the Lenders’ obligation to provide Term Loans terminates.
9.3 Protective Payments. If any Loan Party or any of its Subsidiaries fail to obtain the insurance called for by Section 6.5 or fails to pay any premium
thereon or fails to pay any other amount which any Loan Party or any of its Subsidiaries is obligated to pay under this Agreement or any other Loan Document,
Collateral Agent may obtain such insurance or make such payment, and all amounts so paid by Collateral Agent are Lenders’ Expenses and immediately due
and payable, bearing interest at the Default Rate, and secured by the Collateral. Collateral Agent will make reasonable efforts to provide the Loan Parties with
notice of Collateral Agent obtaining such insurance or making such payment at the time it is obtained or paid or within a reasonable time thereafter. No such
payments by Collateral Agent are deemed an agreement to make similar payments in the future or Collateral Agent’s waiver of any Event of Default.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
9.4 Application of Payments and Proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during
the continuance of an Event of Default, (a) each Loan Party irrevocably waives the right to direct the application of any and all payments at any time or times
thereafter received by Collateral Agent from or on behalf of Borrower or any of its Subsidiaries of all or any part of the Obligations, and, as between each Loan
Party on the one hand and Collateral Agent and Lenders on the other, Collateral Agent shall have the continuing and exclusive right to apply and to reapply any
and all payments received against the Obligations in such manner as Collateral Agent may deem advisable notwithstanding any previous application by
Collateral Agent, and (b) the proceeds of any sale of, or other realization upon all or any part of the Collateral shall be applied: first, to the Lenders’ Expenses;
second, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the United States Bankruptcy Code, would have
accrued on such amounts); third, to the principal amount of the Obligations outstanding; and fourth, to any other Obligations owing to Collateral Agent or any
Lender under the Loan Documents. Any balance remaining shall be delivered to Borrower or to whoever may be lawfully entitled to receive such balance or as a
court of competent jurisdiction may direct. In carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted
prior to the application to the next succeeding category, and (y) each of the Persons entitled to receive a payment in any particular category shall receive an
amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category. Any reference in this Agreement to an allocation
between or sharing by the Lenders of any right, interest or obligation “ratably,” “proportionally” or in similar terms shall refer to the Lenders’ Pro Rata Shares
unless expressly provided otherwise. Collateral Agent, or if applicable, each Lender, shall promptly remit to the other Lenders such sums as may be necessary
to ensure the ratable repayment of each Lender’s Pro Rata Share of any Term Loan and the ratable distribution of interest, fees and reimbursements paid or
made by Borrower. Notwithstanding the foregoing, a Lender receiving a scheduled payment shall not be responsible for determining whether the other Lenders
also received their scheduled payment on such date; provided, however, if it is later determined that a Lender received more than its Pro Rata Share of
scheduled payments made on any date or dates, then such Lender shall remit to Collateral Agent or other the Lenders such sums as may be necessary to
ensure the ratable payment of such scheduled payments, as instructed by Collateral Agent. If any payment or distribution of any kind or character, whether in
cash, properties or securities, shall be received by a Lender in excess of its Pro Rata Share, then the portion of such payment or distribution in excess of such
Lender’s Pro Rata Share shall be received and held by such Lender in trust for and shall be promptly paid over to the other Lenders (in accordance with their
respective Pro Rata Shares) for application to the payments of amounts due on such other Lenders’ claims. To the extent any payment for the account of
Borrower is required to be returned as a voidable transfer or otherwise, the Lenders shall contribute to one another as is necessary to ensure that such return of
payment is on a pro rata basis. If any Lender shall obtain possession of any Collateral, it shall hold such Collateral for itself and as agent and bailee for the
Secured Parties for purposes of perfecting Collateral Agent’s security interest therein (held for the ratable benefit of the Secured Parties).
9.5 Liability for Collateral. So long as Collateral Agent and the Lenders comply with reasonable banking practices regarding the safekeeping of the
Collateral in the possession or under the control of Collateral Agent and the Lenders, Collateral Agent and the Lenders shall not be liable or responsible for:
(a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act or default of any
carrier, warehouseman, bailee, or other Person. The Loan Parties bear all risk of loss, damage or destruction of the Collateral.
9.6 No Waiver; Remedies Cumulative. Failure by Collateral Agent or any Lender, at any time or times, to require strict performance by any Loan Party
of any provision of this Agreement or by any Loan Party or any other Loan Document shall not waive, affect, or diminish any right of Collateral Agent or any
Lender thereafter to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by Collateral Agent
and the Required Lenders and then is only effective for the specific instance and purpose for which it is given. The rights and remedies of Collateral Agent and
the Lenders under this Agreement and the other Loan Documents are cumulative. Collateral Agent and the Lenders have all rights and remedies provided under
the Code, any applicable law, by law, or in equity. The exercise by Collateral Agent or any Lender of one right or remedy is not an election, and Collateral
Agent’s or any Lender’s waiver of any Event of Default is not a continuing waiver. Collateral Agent’s or any Lender’s delay in exercising any remedy is not a
waiver, election, or acquiescence.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
9.7 Demand Waiver. Each Loan Party waives, to the fullest extent permitted by law, demand, notice of default or dishonor, notice of payment and
nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel
paper, and guarantees held by Collateral Agent or any Lender on which such Loan Party or any of its Subsidiaries is liable.
10. NOTICES
Other
than as specifically provided herein, all notices, consents, requests, approvals, demands, or other communication (collectively,
“Communications”) by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or
delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt
requested, with proper postage prepaid; (b) upon transmission, when sent by facsimile transmission; (c) one (1) Business Day after deposit with a reputable
overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and
sent to the address, facsimile number, or email address indicated below. Any of Collateral Agent, Lender or the Loan Parties may change its mailing address or
facsimile number by giving the other party written notice thereof in accordance with the terms of this Section 10.
If to Loan Parties:
APOLLO ENDOSURGERY US, INC.
1120 S Capital of Texas Hwy, #300
Austin, TX 78746
Attn: General Counsel
with a copy (which shall not
constitute notice) to:
COOLEY LLP
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Attn: Michael Tollini
If to Collateral Agent:
with a copy (which shall not
constitute notice) to:
SOLAR CAPITAL LTD.
500 Park Avenue, 3rd Floor
New York, NY 10022
Attention: Anthony Storino
Fax: (212) 993-1698
Email: storino@Solarcapltd.com
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111
Attention: Haim Zaltzman
Facsimile: (415) 395-8095
Email: haim.zaltzman@lw.com
11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
11.1 Waiver of Jury Trial. EACH LOAN PARTY, COLLATERAL AGENT AND LENDERS UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER LOAN
DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS AMONG EACH LOAN PARTY, COLLATERAL AGENT AND/OR
LENDERS RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS
BEING ESTABLISHED AMONG EACH LOAN PARTY, COLLATERAL AGENT AND/OR LENDERS. THE SCOPE OF
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS
IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENTS, OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
11.2 Governing Law and Jurisdiction. THIS AGREEMENT, THE OTHER LOAN DOCUMENTS (EXCLUDING THOSE LOAN DOCUMENTS THAT BY
THEIR OWN TERMS ARE EXPRESSLY GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION
OF ANY LAW OTHER THAN THE LAW OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
REGARDLESS OF THE LOCATION OF THE COLLATERAL, PROVIDED, HOWEVER, THAT IF THE LAWS OF ANY JURISDICTION OTHER THAN NEW
YORK SHALL GOVERN IN REGARD TO THE VALIDITY, PERFECTION OR EFFECT OF PERFECTION OF ANY LIEN OR IN REGARD TO PROCEDURAL
MATTERS AFFECTING ENFORCEMENT OF ANY LIENS IN COLLATERAL, SUCH LAWS OF SUCH OTHER JURISDICTIONS SHALL CONTINUE TO APPLY
TO THAT EXTENT.
11.3 Submission to Jurisdiction. Any legal action or proceeding with respect to the Loan Documents shall be brought exclusively in the courts of the
State of New York located in the City of New York, Borough of Manhattan, or of the United States of America for the Southern District of New York and, by
execution and delivery of this Agreement, Each Loan Party hereby accepts for itself and in respect of its Property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Notwithstanding the foregoing, Collateral Agent and Lenders shall have the right to bring any action or proceeding against any Loan
Party (or any property of any Loan Party) in the court of any other jurisdiction Collateral Agent or Lenders deem necessary or appropriate in order to realize on
the Collateral or other security for the Obligations. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or
based on the grounds of forum non conveniens , that any of them may now or hereafter have to the bringing of any such action or proceeding in such
jurisdictions.
11.4 Service of Process. Each Loan Party irrevocably waives personal service of any and all legal process, summons, notices and other documents
and other service of process of any kind and consents to such service in any suit, action or proceeding brought in the United States of America with respect to or
otherwise arising out of or in connection with any Loan Document by any means permitted by applicable requirements of law, including by the mailing thereof (by
registered or certified mail, postage prepaid) to the address of the Loan Parties specified herein (and shall be effective when such mailing shall be effective, as
provided therein). Each Loan Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
11.5 Non-exclusive Jurisdiction . Nothing contained in this Article 11 shall affect the right of Collateral Agent or Lenders to serve process in any other
manner permitted by applicable requirements of law or commence legal proceedings or otherwise proceed against any Loan Party in any other jurisdiction.
12. GENERAL PROVISIONS
12.1 Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. No Loan Party may
transfer, pledge or assign this Agreement or any rights or obligations under it without Collateral Agent’s prior written consent (which may be granted or withheld
in Collateral Agent’s discretion, subject to Section 12.5). The Lenders have the right, without the consent of or notice to any Loan Party, to sell, transfer, assign,
pledge, negotiate, or grant participation in (any such sale, transfer, assignment, negotiation , or grant of a participation, a “Lender Transfer”) all or any part of,
or any interest in, the Lenders’ obligations, rights, and benefits under this Agreement and the other Loan Documents; provided, however, that any
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such Lender Transfer (other than (i) any Transfer at any time that an Event of Default has occurred and is continuing, or (ii) a transfer, pledge, sale or
assignment to an Eligible Assignee) of its obligations, rights, and benefits under this Agreement and the other Loan Documents shall require the prior written
consent of the Collateral Agent (such approved assignee, an “Approved Lender”). Each Loan Party and Collateral Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so assigned until Collateral Agent shall have received and accepted an effective assignment
agreement in form satisfactory to Collateral Agent executed, delivered and fully completed by the applicable parties thereto, and shall have received such other
information regarding such Eligible Assignee or Approved Lender as Collateral Agent reasonably shall require. Notwithstanding anything to the contrary
contained herein, so long as no Event of Default has occurred and is continuing, no Lender Transfer (other than a Lender Transfer in connection with (x)
assignments by a Lender due to a forced divestiture at the request of any regulatory agency; or (y) upon the occurrence of a default, event of default or similar
occurrence with respect to a Lender’s own financing or securitization transactions) shall be permitted, without the Loan Parties’ consent, to any Person which is
an Affiliate or Subsidiary of any Loan Party, a then-current direct competitor of any Loan Party, as reasonably determined by Collateral Agent at the time of such
assignment.
12.2 Indemnification. Each Loan Party agrees to indemnify, defend and hold each Secured Party and their respective directors, officers, employees,
consultants, agents, attorneys, or any other Person affiliated with or representing such Secured Party (each, an “Indemnified Person”) harmless against: (a) all
obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following; or arising from, out of or
under, the transactions contemplated by the Loan Documents; and (b) all losses and Lenders’ Expenses incurred, or paid by Indemnified Person in connection
with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan Documents (including reasonable attorneys’ fees and
expenses), except, in each case, for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Each Loan Party
hereby further agrees to indemnify, defend and hold each Indemnified Person harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of
counsel for such Indemnified Person) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not
such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of the Loan Parties, and the reasonable
expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any
broker (other than any broker retained by Collateral Agent or Lenders) asserting any right to payment for the transactions contemplated hereby which may be
imposed on, incurred by or asserted against such Indemnified Person as a result of or in connection with the transactions contemplated hereby and the use or
intended use of the proceeds of the loan proceeds except for liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements directly caused by such Indemnified Person’s gross negligence or willful misconduct.
12.3 Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any
provision.
12.4 Correction of Loan Documents. Collateral Agent may correct patent errors and fill in any blanks in this Agreement and the other Loan Documents
consistent with the agreement of the parties.
12.5 Amendments in Writing; Integration. (1) No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan
Document, no approval or consent thereunder, or any consent to any departure by any Loan Party or any of its Subsidiaries therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Loan Parties, Collateral Agent and the Required Lenders provided that:
Commitment or Commitment Percentage shall be effective as to such Lender without such Lender’s written consent;
(i) no such amendment, waiver or other modification that would have the effect of increasing or reducing a Lender’s Term Loan
Collateral Agent’s written consent or signature; and
(ii) no such amendment, waiver or modification that would affect the rights and duties of Collateral Agent shall be effective without
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(iii) no such amendment, waiver or other modification shall, unless signed by all the Lenders directly affected thereby, (A) reduce the
principal of, rate of interest on or any fees with respect to any Term Loan or forgive any principal, interest (other than default interest) or fees (other than late
charges) with respect to any Term Loan (B) postpone the date fixed for, or waive, any payment of principal of any Term Loan or of interest on any Term Loan
(other than default interest) or any fees provided for hereunder (other than late charges or for any termination of any commitment); (C) change the definition of
the term “Required Lenders” or the percentage of Lenders which shall be required for the Lenders to take any action hereunder; (D) release all or substantially
all of any material portion of the Collateral, authorize Borrower to sell or otherwise dispose of all or substantially all or any material portion of the Collateral or
release any Guarantor of all or any portion of the Obligations or its Guaranty obligations with respect thereto, except, in each case with respect to this clause
(D), as otherwise may be expressly permitted under this Agreement or the other Loan Documents (including in connection with any disposition permitted
hereunder); (E) amend, waive or otherwise modify this Section 12.5 or the definitions of the terms used in this Section 12.5 insofar as the definitions affect the
substance of this Section 12.5; (F) consent to the assignment, delegation or other transfer by any Loan Party of any of its rights and obligations under any Loan
Document or release Borrower of its payment obligations under any Loan Document, except, in each case with respect to this clause (F), pursuant to a merger
or consolidation permitted pursuant to this Agreement; (G) amend any of the provisions of Section 9.4 or amend any of the definitions of Pro Rata Share, Term
Loan Commitment, Commitment Percentage or that provide for the Lenders to receive their Pro Rata Shares of any fees, payments, setoffs or proceeds of
Collateral hereunder; (H) subordinate the Liens granted in favor of Collateral Agent securing the Obligations; or (I) amend any of the provisions of Section 12.7.
It is hereby understood and agreed that all Lenders shall be deemed directly affected by an amendment, waiver or other modification of the type described in the
preceding clauses (C), (D), (E), (F), (G) and (H) of the immediately preceding sentence.
(b) Other than as expressly provided for in Section 12.5(a)(i)‑(iii), Collateral Agent may, at its discretion, or if requested by the Required Lenders, from
time to time designate covenants in this Agreement less restrictive by notification to a representative of the Loan Parties.
(c) This Agreement and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements
with respect to such subject matter. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject
matter of this Agreement and the Loan Documents merge into this Agreement and the Loan Documents.
12.6 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, is an original, and all taken together, constitute one Agreement. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart
hereof.
12.7 Survival. All covenants, representations and warranties made in this Agreement continue in full force and effect until this Agreement has
terminated pursuant to its terms and all Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the
termination of this Agreement) have been satisfied. The obligation of the Loan Parties in Section 12.2 to indemnify each Lender and Collateral Agent, as well as
the withholding provision in Section 2.5 hereof and the confidentiality provisions in Section 12.8 below, shall survive until the statute of limitations with respect to
such claim or cause of action shall have run.
12.8 Confidentiality. In handling any confidential information of the Loan Parties, each of the Lenders and Collateral Agent shall exercise the same
degree of care that it exercises for their own proprietary information, but disclosure of information may be made: (a) subject to the terms and conditions of this
Agreement, to the Lenders’ and Collateral Agent’s Subsidiaries or Affiliates, or in connection with a Lender’s own financing or securitization transactions and
upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization transaction; (b) to prospective transferees
(other than those identified in (a) above) or purchasers of any interest in the Term Loans (provided, however, the Lenders and Collateral Agent shall, except
upon the occurrence and during the continuance of an Event of Default, obtain such prospective transferee’s or
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purchaser’s agreement to the terms of this provision or to similar confidentiality terms); (c) as required by law, rule, regulation, regulatory or self-regulatory
authority, subpoena, or other order; (d) to Lenders’ or Collateral Agent’s regulators or as otherwise required in connection with an examination or audit; (e) as
Collateral Agent reasonably considers appropriate in exercising remedies under the Loan Documents; and (f) to third party service providers of the Lenders
and/or Collateral Agent so long as such service providers have executed a confidentiality agreement or have agreed to similar confidentiality terms with the
Lenders and/or Collateral Agent, as applicable, with terms no less restrictive than those contained herein. Confidential information does not include information
that either: (i) is in the public domain or in the Lenders’ and/or Collateral Agent’s possession when disclosed to the Lenders and/or Collateral Agent, or becomes
part of the public domain after disclosure to the Lenders and/or Collateral Agent through no breach of this provision by the Lenders or the Collateral Agent; or
(ii) is disclosed to the Lenders and/or Collateral Agent by a third party, if the Lenders and/or Collateral Agent does not know that the third party is prohibited from
disclosing the information. Collateral Agent and the Lenders may use confidential information for any purpose, including, without limitation, for the development
of client databases, reporting purposes, and market analysis. The provisions of the immediately preceding sentence shall survive the termination of this
Agreement. The agreements provided under this Section 12.9 supersede all prior agreements, understanding, representations, warranties, and negotiations
between the parties about the subject matter of this Section 12.8.
12.9 Right of Set Off. Each Loan Party hereby grants to Collateral Agent and to each Lender, a Lien, security interest and right of set off as security for
all Obligations to Secured Parties hereunder, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control of any Secured Party or any entity under the control of such Security Party (including a Collateral
Agent Affiliate) or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, any
Secured Party may set off the same or any part thereof and apply the same to any liability or obligation of the Loan Parties even though unmatured and
regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE COLLATERAL AGENT TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY LOAN PARTY ARE HEREBY KNOWINGLY, VOLUNTARILY
AND IRREVOCABLY WAIVED BY SUCH LOAN PARTY.
12.10 Cooperation of Loan Parties. If necessary, each Loan Party agrees to (i) execute any documents reasonably required to effectuate and
acknowledge each assignment of a Term Loan Commitment (or portion thereof) or Term Loan (or portion thereof) to an assignee in accordance with
Section 12.1, (ii) make each Loan Party’s management personnel available to meet with Collateral Agent and prospective participants and assignees of Term
Loan Commitments, the Term Loans or portions thereof (which meetings shall be conducted no more often than twice every twelve months unless an Event of
Default has occurred and is continuing), and (iii) assist Collateral Agent and the Lenders in the preparation of information relating to the financial affairs of each
Loan Party as any prospective participant or assignee of a Term Loan Commitment (or portions thereof) or Term Loan (or portions thereof) reasonably may
request. Subject to the provisions of Section 12.8, each Loan Party authorizes each Lender to disclose to any prospective participant or assignee of a Term Loan
Commitment (or portions thereof), any and all information in such Lender’s possession concerning each Loan Party and its financial affairs which has been
delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement, or which has been delivered to such Lender by or on behalf of any Loan
Party in connection with such Lender’s credit evaluation of the Loan Parties prior to entering into this Agreement.
12.11 Public Announcement. Each Loan Party hereby agrees that Collateral Agent and each Lender may make a public announcement of the
transactions contemplated by this Agreement, and may publicize the same in marketing materials, newspapers and other publications, and otherwise, and in
connection therewith may use any Loan Party’s name, tradenames and logos. Collateral Agent and the Lenders may also make disclosures to the Securities and
Exchange Commission or other governmental agency and any other public disclosure with investors, other governmental agencies or other related persons.
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12.12 Collateral Agent and Lender Agreement. Collateral Agent and the Lenders hereby agree to the terms and conditions set forth on Exhibit B
attached hereto. Each Loan Party acknowledges and agrees to the terms and conditions set forth on Exhibit B attached hereto.
12.13 Time of Essence. Time is of the essence for the performance of Obligations under this Agreement.
12.14 Termination Prior to Maturity Date; Survival. All covenants, representations and warranties made in this Agreement continue in full force until
this Agreement has terminated pursuant to its terms and all Obligations have been satisfied. So long as Borrower has satisfied the Obligations (other than
inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement and for which no claim has been
made) in accordance with the terms of this Agreement, this Agreement may be terminated prior to the Maturity Date by Borrower, effective five (5) Business
Days after written notice of termination is given to the Collateral Agent and the Lenders.
12.15 Multiple Borrowers.
(a) Borrower’s Agent. Each of the Borrowers hereby irrevocably appoints Apollo Endosurgery US, Inc., as its agent, attorney-in-fact and legal
representative for all purposes, including requesting disbursement of the Term Loans and receiving account statements and other notices and communications
to Borrowers (or any of them) from the Collateral Agent or the Lenders. The Collateral Agent or the Lenders may rely, and shall be fully protected in relying, on
any request for the Term Loans, disbursement instruction, report, information or any other notice or communication made or given by Apollo Endosurgery US,
Inc., whether in its own name or on behalf of one or more of the other Borrowers, and the Collateral Agent or the Lenders shall not have any obligation to make
any inquiry or request any confirmation from or on behalf of any other Borrower as to the binding effect on it of any such request, instruction, report, information,
other notice or communication, nor shall the joint and several character of the Borrowers’ obligations hereunder be affected thereby.
(b) Waivers. Each Borrower hereby waives: (i) any right to require the Collateral Agent or the Lenders to institute suit against, or to exhaust its rights and
remedies against, any other Borrower or any other person, or to proceed against any property of any kind which secures all or any part of the Obligations, or to
exercise any right of offset or other right with respect to any reserves, credits or deposit accounts held by or maintained with any Lender or any Indebtedness of
any Lender to any other Borrower, or to exercise any other right or power, or pursue any other remedy a Lender may have; (ii) any defense arising by reason of
any disability or other defense of any other Borrower or any guarantor or any endorser, co-maker or other person, or by reason of the cessation from any cause
whatsoever of any liability of any other Borrower or any guarantor or any endorser, co-maker or other person, with respect to all or any part of the Obligations,
or by reason of any act or omission of Collateral Agent, any Lender or others which directly or indirectly results in the discharge or release of any other Borrower
or any guarantor or any other person or any Obligations or any security therefor, whether by operation of law or otherwise; (iii) any defense arising by reason of
any failure of Collateral Agent to obtain, perfect, maintain or keep in force any Lien on, any property of any Borrower or any other person; (iv) any defense based
upon or arising out of any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or
against any other Borrower or any guarantor or any endorser, co-maker or other person, including without limitation any discharge of, or bar against collecting,
any of the Obligations (including without limitation any interest thereon), in or as a result of any such proceeding. Until all of the Obligations have been paid,
performed, and discharged in full, nothing shall discharge or satisfy the liability of any Borrower hereunder except the full performance and payment of all of the
Obligations. If any claim is ever made upon Collateral Agent or any Lender for repayment or recovery of any amount or amounts received by Collateral Agent or
any Lender in payment of or on account of any of the Obligations, because of any claim that any such payment constituted a preferential transfer or fraudulent
conveyance, or for any other reason whatsoever, and Collateral Agent or any Lender repays all or part of said amount by reason of any judgment, decree or
order of any court or administrative body having jurisdiction over Collateral Agent or any Lender or any of its property, or by reason of any settlement or
compromise of any such claim effected by Collateral Agent or any Lender with any such claimant (including without limitation the any other Borrower), then and
in any such event, each Borrower agrees that any such judgment, decree, order,
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settlement and compromise shall be binding upon such Borrower, notwithstanding any revocation or release of this Agreement or the cancellation of any note or
other instrument evidencing any of the Obligations, or any release of any of the Obligations, and each Borrower shall be and remain liable to Collateral Agent and
the Lenders under this Agreement for the amount so repaid or recovered, to the same extent as if such amount had never originally been received by Collateral
Agent or any Lender, and the provisions of this sentence shall survive, and continue in effect, notwithstanding any revocation or release of this Agreement. Each
Borrower hereby expressly and unconditionally waives all rights of subrogation, reimbursement and indemnity of every kind against any other Borrower, and all
rights of recourse to any assets or property of any other Borrower, and all rights to any collateral or security held for the payment and performance of any
Obligations, including (but not limited to) any of the foregoing rights which Borrower may have under any present or future document or agreement with any
other Borrower or other person, and including (but not limited to) any of the foregoing rights which any Borrower may have under any equitable doctrine of
subrogation, implied contract, or unjust enrichment, or any other equitable or legal doctrine.
(c) Consents. Each Borrower hereby consents and agrees that, without notice to or by Borrower and without affecting or impairing in any way the
obligations or liability of Borrower hereunder, Collateral Agent and the Lenders may, from time to time before or after revocation of this Agreement, do any one
or more of the following in its sole and absolute discretion: (i) accept partial payments of, compromise or settle, renew, extend the time for the payment,
discharge, or performance of, refuse to enforce, and release all or any parties to, any or all of the Obligations; (ii) grant any other indulgence to any Borrower or
any other Person in respect of any or all of the Obligations or any other matter; (iii) accept, release, waive, surrender, enforce, exchange, modify, impair, or
extend the time for the performance, discharge, or payment of, any and all property of any kind securing any or all of the Obligations or any guaranty of any or
all of the Obligations, or on which Lender at any time may have a Lien, or refuse to enforce its rights or make any compromise or settlement or agreement
therefor in respect of any or all of such property; (iv) substitute or add, or take any action or omit to take any action which results in the release of, any one or
more other Borrowers or any endorsers or guarantors of all or any part of the Obligations, including, without limitation one or more parties to this Agreement,
regardless of any destruction or impairment of any right of contribution or other right of Borrower; (v) apply any sums received from any other Borrower, any
guarantor, endorser, or co-signer, or from the disposition of any Collateral or security, to any Indebtedness whatsoever owing from such person or secured by
such Collateral or security, in such manner and order as Lender determines in its sole discretion, and regardless of whether such Indebtedness is part of the
Obligations, is secured, or is due and payable. Each Borrower consents and agrees that Collateral Agent shall be under no obligation to marshal any assets in
favor of Borrower, or against or in payment of any or all of the Obligations. Each Borrower further consents and agrees that Collateral Agent shall have no duties
or responsibilities whatsoever with respect to any property securing any or all of the Obligations. Without limiting the generality of the foregoing, Collateral Agent
shall have no obligation to monitor, verify, audit, examine, or obtain or maintain any insurance with respect to, any property securing any or all of the Obligations.
(d) Independent Liability. Each Borrower hereby agrees that one or more successive or concurrent actions may be brought hereon against such
Borrower, in the same action in which any other Borrower may be sued or in separate actions, as often as deemed advisable by Collateral Agent. Each Borrower
is fully aware of the financial condition of each other Borrower and is executing and delivering this Agreement based solely upon its own independent
investigation of all matters pertinent hereto, and such Borrower is not relying in any manner upon any representation or statement of Collateral Agent or any
Lender with respect thereto. Each Borrower represents and warrants that it is in a position to obtain, and each Borrower hereby assumes full responsibility for
obtaining, any additional information concerning any other Borrower’s financial condition and any other matter pertinent hereto as such Borrower may desire, and
such Borrower is not relying upon or expecting Collateral Agent or any Lender to furnish to it any information now or hereafter in Collateral Agent’s or such
Lender’s possession concerning the same or any other matter.
(e) Subordination. All Indebtedness of a Borrower now or hereafter arising held by another Borrower is subordinated to the Obligations and the Borrower
holding the Indebtedness shall take all actions reasonably requested by Collateral Agent to effect, to enforce and to give notice of such subordination.
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12.16 Service of Process. Each Loan Party that is organized outside of the United States of America shall appoint Corporation Service Company, or
other agent reasonably acceptable to Collateral Agent, as its agent for the purpose of accepting service of any process in the United States of America,
evidenced by a service of process letter in form and substance reasonably satisfactory to Collateral Agent (each, a “Process Letter”). Borrower shall take all
actions, including payment of fees to such agent, to ensure that each Process Letter remains effective at all times.
13. GUARANTY.
13.1 Guaranty. Each Loan Party hereby agrees that such Loan Party is jointly and severally liable for, and hereby absolutely and unconditionally
guarantees to the Collateral Agent and the Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Collateral Agent and the Lenders by each other Loan Party. Each
Loan Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, and that its obligations under
this Section 13 shall be absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other
agreement, document or instrument to which any Loan Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 13) or any other Loan Document or the waiver or consent by the
Collateral Agent and the Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action,
by the Collateral Agent and the Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Loan Party; or
(e) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor,
it being agreed by each Loan Party that its obligations under this Section 13 shall not be discharged until the Termination Date has occurred. Each Loan Party
shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
13.2 Waivers by the Loan Parties . Each Loan Party expressly waives all rights it may have now or in the future under any statute, or at common law, or
pursuant to any other laws or in equity, or otherwise, to compel the Collateral Agent or the Lenders to marshal assets or to proceed in respect of the Obligations
guaranteed hereunder against any other Loan Party, any other party or against any security for the payment and performance of the Obligations before
proceeding against, or as a condition to proceeding against, such Loan Party. It is agreed among each Loan Party, the Collateral Agent and the Lenders that the
foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this
Section 13 and such waivers, the Collateral Agent and the Lenders would decline to enter into this Agreement.
13.3 Benefit of Guaranty. Each Loan Party agrees that the provisions of this Section 13 are for the benefit of the Collateral Agent and the other Secured
Parties and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between the Borrower, on the one
hand, and the Collateral Agent and the Lenders, on the other hand, the obligations of such other Loan Party under the Loan Documents.
13.4 Subordination of Subrogation, Etc. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set
forth in Section 13.7, each Loan Party hereby expressly and
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irrevocably subordinates to the prior payment in full, in cash, of the Obligations (other than contingent indemnity obligations for which no claim is outstanding)
any and all rights pursuant to any laws or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses
available to a surety, guarantor or accommodation co-obligor until the Termination Date has occurred. Each Loan Party acknowledges and agrees that this
subordination is intended to benefit the Collateral Agent and the Lenders and shall not limit or otherwise affect such Loan Party’s liability hereunder or the
enforceability of this Section 13, and that the Collateral Agent, the Lenders and their respective successors and assigns are intended third party beneficiaries of
the waivers and agreements set forth in this Section 13.4.
13.5 Election of Remedies. If the Collateral Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan
Documents giving the Collateral Agent or such Lender a Lien upon any Collateral, whether owned by any Loan Party or by any other Person, either by judicial
foreclosure or by non-judicial sale or enforcement, the Collateral Agent or any Lender may, at its sole option, determine which of its remedies or rights it may
pursue without affecting any of its rights and remedies under this Section 13. If, in the exercise of any of its rights and remedies, the Collateral Agent or any
Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because
of any applicable laws pertaining to “election of remedies” or the like, each Loan Party hereby consents to such action by the Collateral Agent or such Lender
and waives any claim based upon such action, even if such action by the Collateral Agent or such Lender shall result in a full or partial loss of any rights of
subrogation which each Loan Party might otherwise have had but for such action by the Collateral Agent or such Lender. Any election of remedies which results
in the denial or impairment of the right of the Collateral Agent or any Lender to seek a deficiency judgment against any Loan Party shall not impair any other
Loan Party’s obligation to pay the full amount of the Obligations. In the event the Collateral Agent or any Lender shall bid at any foreclosure or trustee’s sale or at
any private sale permitted by law or the Loan Documents, the Collateral Agent (either directly or through one or more acquisition vehicles) or such Lender may
offset the Obligations against the purchase price of such bid in lieu of accepting cash or other non-cash consideration in connection with such sale or other
disposition. The amount of the successful bid at any such sale, whether the Collateral Agent, any Lender or any other party is the successful bidder, shall be
conclusively deemed to be the fair and reasonably equivalent value of the Collateral and the difference between such bid amount and the remaining balance of
the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 13, notwithstanding that any present or future
law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which the Collateral Agent or any Lender might otherwise be
entitled but for such bidding at any such sale.
13.6 Limitation. Notwithstanding any provision herein contained to the contrary, the liability of each Loan Party (other than any Borrower) under this
Section 13 (which liability is in any event in addition to amounts for which such Loan Party is primarily liable under Section 2) shall be limited to an amount not to
exceed as of any date of determination the greater of;
(a) the net amount of all Term Loans (plus all other Obligations owing in connection therewith) advanced to any other Loan Party under this Agreement
and then re-loaned or otherwise transferred to, or for the benefit of, such Loan Party; and
(b) the amount which could be claimed by the Collateral Agent and the Lenders from such Loan Party under this Section 13 without rendering such claim
voidable or avoidable under;
(c) Section 548 of Chapter 11 of the United States Bankruptcy Code, as amended, or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Loan Party’s right of contribution and
indemnification from each other Loan Party under Section 13.7.
13.7 Contribution with Respect to Guaranty Obligations .
(a) To the extent that any Loan Party shall make a payment under this Section 13 of all or any of the Obligations (other than Term Loans made to that
Loan Party for which it is primarily liable) (a “Guarantor
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Payment”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Loan Party, exceeds the amount which
such Loan Party would otherwise have paid if each Loan Party had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion
that such Loan Party’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable
Amounts of each of the Loan Parties as determined immediately prior to the making of such Guarantor Payment, then, following the occurrence of the
Termination Date, such Loan Party shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Loan Party for
the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the “Allocable Amount” of any Loan Parties shall be equal to the maximum amount of the claim which could then be
recovered from such Loan Parties under this Section 13 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the United States
Bankruptcy Code, as amended or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common
law.
(c) This Section 13.7 is intended only to define the relative rights of Loan Parties and nothing set forth in this Section 13.7 is intended to or shall impair
the obligations of Loan Parties, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of
this Agreement, including Section 13.1. Nothing contained in this Section 13.7 shall limit the liability of any Loan Party to pay the Term Loans made directly or
indirectly to that Loan Party and accrued interest, fees, expenses and all other Obligations with respect thereto for which such Loan Party shall be primarily
liable.
(d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Loan Party to which such
contribution and indemnification is owing.
(e) The rights of the indemnifying Loan Parties against other Loan Parties under this Section 13.7 shall be exercisable upon and after the Termination
Date.
13.8 Liability Cumulative. The liability of Loan Parties under this Section 13 is in addition to and shall be cumulative with all liabilities of each Loan Party
to the Collateral Agent and the Lenders under this Agreement and the other Loan Documents to which such Loan Party is a party or in respect of any
Obligations of any other Loan Party, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
[Balance of Page Intentionally Left Blank]
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.
BORROWER:
APOLLO ENDOSURGERY, INC.
APOLLO ENDOSURGERY INTERNATIONAL, LLC
By:
Name:
Title:
By:
Name:
Title:
APOLLO ENDOSURGERY US, INC.
LPATH THERAPEUTICS INC.
By:
Name:
Title:
By:
Name:
Title:
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
GUARANTORS:
APOLLO ENDOSURGERY COSTA RICA S.R.L.
APOLLO ENDOSURGERY UK LTD
By:
Name:
Title:
By:
Name:
Title:
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
COLLATERAL AGENT:
SOLAR CAPITAL LTD.
By:
Name:
Title:
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
LENDER:
SOLAR CAPITAL LTD.
By:
Name:
Title:
SCP PRIVATE CREDIT INCOME FUND SPV LLC
By:
Name:
Title:
SCP PRIVATE CREDIT INCOME BDC SPV LLC
By:
Name:
Title:
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Lender
Solar Capital Ltd.
SCP Private Credit Income Fund SPV LLC
SCP Private Credit Income BDC SPV LLC
TOTAL
TOTAL
TOTAL
SCHEDULE 1.1
Lenders and Commitments
Term A Loans
Term Loan Commitment
Commitment Percentage
$20,491,579
$10,504,912
$4,003,509
$35,000,000
Term B Loans
Aggregate (all Term Loans)
58.55%
30.01%
11.44%
100.00%
Term Loan Amount
$15,000,000∗
Term Loan Amount
$50,000,000∗
______________________________
* Term B Loan is conditioned on approval by each Lender’s investment credit committee in its sole discretion.
* Term B Loan is conditioned on approval by each Lender’s investment credit committee in its sole discretion.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT A
Description of Collateral
The Collateral consists of all of each Loan Party’s right, title and interest in and to the following property:
All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements,
franchise agreements, General Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or
electronic), cash, deposit accounts and other Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is
evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired,
wherever located; and
All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions,
attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding the foregoing, the Collateral does not include (a) any interest of any Loan Party as a lessee or sublessee under a real property lease; (b)
rights held under a license that are not assignable by their terms without the consent of the licensor thereof (but only to the extent such restriction on assignment
is effective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable
law (including the Bankruptcy Code) or principles of equity); or (c) any interest of any Loan Party as a lessee under an Equipment lease if such Loan Party is
prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur
under such lease; provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by such
Loan Party, Collateral Agent or any Lender.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT B
Collateral Agent and Lender Terms
2
Appointment of Collateral Agent.
(a) Each Lender hereby appoints Solar (together with any successor Collateral Agent pursuant to Section 1.7 of this Exhibit B) as Collateral
Agent under the Loan Documents and authorizes Collateral Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from
any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Collateral
Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Collateral Agent shall have the sole and exclusive right and authority (to the exclusion of
the Lenders), and is hereby authorized, to (i) file and prove claims and file other documents necessary or desirable to allow the claims of Collateral Agent and
Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender),
(ii) act as collateral agent for the Secured Parties for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated
therein, (iii) manage, supervise and otherwise deal with the Collateral as permitted pursuant to the Loan Agreement, (iv) take such other action as is necessary
or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (v) except as may be otherwise
specified in any Loan Document, exercise all remedies given to Collateral Agent and the other Lenders with respect to each Loan Party and/or the Collateral,
whether under the Loan Documents, applicable Requirements of Law or otherwise and (vi) execute any amendment, consent or waiver under the Loan
Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Collateral Agent hereby
appoints, authorizes and directs each Lender to act as collateral sub-agent for Collateral Agent and the Lenders for purposes of the perfection of all Liens with
respect to the Collateral, including any Deposit Account maintained by any Loan Party with, and cash and Cash Equivalents held by, such Lender, and may
further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the
Collateral subject thereto to Collateral Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and
directed. Collateral Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or
perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other
Person (including any Lender). Any such Person shall benefit from this Exhibit B to the extent provided by Collateral Agent.
(c) Under the Loan Documents, Collateral Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature,
notwithstanding the use of the defined term “Collateral Agent”, the terms “agent”, “Collateral Agent” and “collateral agent” and similar terms in any Loan
Document to refer to Collateral Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as
expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions,
responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby
waives and agrees not to assert any claim against Collateral Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through
(iii) above. Except as expressly set forth in the Loan Documents, Collateral Agent shall not have any duty to disclose, and shall not be liable for failure to
disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by Solar or any of its Affiliates in any capacity.
2. Binding Effect; Use of Discretion; E-Systems.
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(a) Each Lender, by accepting the benefits of the Loan Documents, agrees that (i) any action taken by Collateral Agent or the Required Lenders
(or, if expressly required in any Loan Document, a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii) any action
taken by Collateral Agent in reliance upon the instructions of the Required Lenders (or, where so required, such greater proportion) and (iii) the exercise by
Collateral Agent or the Required Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized and binding upon all of Lenders.
(b) If Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including
failure to act) in connection with any Loan Document, then Collateral Agent shall be entitled to refrain from such act or taking such action unless and until
Collateral Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and Collateral Agent shall not incur
liability to any Person by reason of so refraining. Collateral Agent shall be fully justified in failing or refusing to take any action under any Loan Document (i) if
such action would, in the opinion of Collateral Agent, be contrary to any Requirement of Law or any Loan Document, (ii) if such action would, in the opinion of
Collateral Agent, expose Collateral Agent to any potential liability under any Requirement of Law or (iii) if Collateral Agent shall not first be indemnified to its
satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against Collateral Agent as a result of Collateral Agent acting or refraining from acting under any
Loan Document in accordance with the instructions of the Required Lenders or all affected Lenders, as applicable.
(c) Collateral Agent is hereby authorized by each Loan Party and each Lender to establish procedures (and to amend such procedures from time
to time) to facilitate administration and servicing of the Term Loans and other matters incidental thereto. Without limiting the generality of the foregoing, Collateral
Agent is hereby authorized to establish procedures to make available or deliver, or to accept, notices, documents (including, without limitation, borrowing base
certificates) and similar items on, by posting to or submitting and/or completion, on E-Systems. Each Loan Party and each Lender acknowledges and agrees that
the use of transmissions via an E-System or electronic mail is not necessarily secure and that there are risks associated with such use, including risks of
interception, disclosure and abuse, and each Loan Party and each Lender assumes and accepts such risks by hereby authorizing the transmission via E-
Systems or electronic mail. Each “e-signature” on any such posting shall be deemed sufficient to satisfy any requirement for a “signature”, and each such posting
shall be deemed sufficient to satisfy any requirement for a “writing”, in each case including pursuant to any Loan Document, any applicable provision of any
Code, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and National Commerce Act and any substantive or procedural
Requirement of Law governing such subject matter. All uses of an E-System shall be governed by and subject to, in addition to this Section, the separate terms,
conditions and privacy policy posted or referenced in such E-System (or such terms, conditions and privacy policy as may be updated from time to time,
including on such E-System) and related contractual obligations executed by Collateral Agent, any Loan Party and/or Lenders in connection with the use of such
E-System. ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND “AS AVAILABLE”. NO REPRESENTATION OR
WARRANTY OF ANY KIND IS MADE BY AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS IN CONNECTION WITH ANY E-SYSTEMS.
3. Collateral Agent’s Reliance, Etc. Collateral Agent may, without incurring any liability hereunder, (a) consult with any of its Related Persons and,
whether or not selected by it, any other advisors, accountants and other experts (including advisors to, and accountants and experts engaged by, any Loan
Party) and (b) rely and act upon any document and information (including those transmitted by electronic transmission) and any telephone message or
conversation, in each case believed by it to be genuine and transmitted, signed or otherwise authenticated by the appropriate parties. None of Collateral Agent
and its Related Persons shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Loan Document, and each
Lender and each Loan Party hereby waives and shall not assert (and each Loan Party shall cause its Subsidiaries to waive and agree not to assert) any right,
claim or cause of action based thereon, except to the extent of liabilities resulting from the gross negligence or willful misconduct of Collateral Agent or, as the
case may be, such Related Person (each as determined in a final, non-appealable judgment of a court of competent jurisdiction) in connection
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
with the duties of Collateral Agent expressly set forth herein. Without limiting the foregoing, Collateral Agent: (i) shall not be responsible or otherwise incur
liability for any action or omission taken in reliance upon the instructions of the Required Lenders or for the actions or omissions of any of its Related Persons,
except to the extent that a court of competent jurisdiction determines in a final non-appealable judgment that Collateral Agent acted with gross negligence or
willful misconduct in the selection of such Related Person; (ii) shall not be responsible to any Lender or other Person for the due execution, legality, validity,
enforceability, effectiveness, genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under
or in connection with, any Loan Document; (iii) makes no warranty or representation, and shall not be responsible, to any Lender or other Person for any
statement, document, information, representation or warranty made or furnished by or on behalf of any Loan Party or any Related Person of any Loan Party in
connection with any Loan Document or any transaction contemplated therein or any other document or information with respect to any Loan Party, whether or
not transmitted or (except for documents expressly required under any Loan Document to be transmitted to the Lenders) omitted to be transmitted by Collateral
Agent, including as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed by Collateral Agent
in connection with the Loan Documents; and (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any provision of any
Loan Document, whether any condition set forth in any Loan Document is satisfied or waived, as to the financial condition of any Loan Party or as to the
existence or continuation or possible occurrence or continuation of any Event of Default, and shall not be deemed to have notice or knowledge of such
occurrence or continuation unless it has received a notice from any Loan Party or any Lender describing such Event of Default that is clearly labeled “notice of
default” (in which case Collateral Agent shall promptly give notice of such receipt to all Lenders, provided that Collateral Agent shall not be liable to any Lender
for any failure to do so, except to the extent that such failure is attributable to Collateral Agent’s gross negligence or willful misconduct as determined by a final
non-appealable judgment of a court of competent jurisdiction); and, for each of the items set forth in clauses (i) through (iv) above, each Lender and any Loan
Party hereby waives and agrees not to assert (and any Loan Party shall cause its Subsidiaries to waive and agree not to assert) any right, claim or cause of
action it might have against Collateral Agent based thereon.
4. Collateral Agent Individually. Collateral Agent and its Affiliates may make loans and other extensions of credit to, acquire stock and stock
equivalents of, engage in any kind of business with, any Loan Party or any Affiliate of any Loan Party as though it were not acting as Collateral Agent and may
receive separate fees and other payments therefor. To the extent Collateral Agent or any of its Affiliates makes any Term Loans or otherwise becomes a Lender
hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Lender
and the terms “Lender”, “Required Lender” and any similar terms shall, except where otherwise expressly provided in any Loan Document, include, without
limitation, Collateral Agent or such Affiliate, as the case may be, in its individual capacity as Lender, or as one of the Required Lenders.
5. Lender Credit Decision; Collateral Agent Report. Each Lender acknowledges that it shall, independently and without reliance upon Collateral
Agent, any Lender or any of their Related Persons or upon any document solely or in part because such document was transmitted by Collateral Agent or any of
its Related Persons, conduct its own independent investigation of the financial condition and affairs of any Loan Party and make and continue to make its own
credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated
in any Loan Document, in each case based on such documents and information as it shall deem appropriate. Except for documents expressly required by any
Loan Document to be transmitted by Collateral Agent to the Lenders, Collateral Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations, Property, financial and other condition or creditworthiness of any Loan Party or any
Affiliate of any Loan Party that may come in to the possession of Collateral Agent or any of its Related Persons. Each Lender agrees that is shall not rely on any
field examination, audit or other report provided by Collateral Agent or its Related Persons (an “Collateral Agent Report”). Each Lender further acknowledges
that any Collateral Agent Report (a) is provided to the Lenders solely as a courtesy, without consideration, and based upon the understanding that such Lender
will not rely on such Collateral Agent Report, (b) was prepared by Collateral Agent or its Related Persons based upon information provided by any Loan Party
solely for Collateral Agent’s own internal use, and (c) may not be complete and may not reflect all information and findings obtained by Collateral Agent or its
Related
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Persons regarding the operations and condition of any Loan Party. Neither Collateral Agent nor any of its Related Persons makes any representations or
warranties of any kind with respect to (i) any existing or proposed financing, (ii) the accuracy or completeness of the information contained in any Collateral
Agent Report or in any related documentation, (iii) the scope or adequacy of Collateral Agent’s and its Related Persons’ due diligence, or the presence or
absence of any errors or omissions contained in any Collateral Agent Report or in any related documentation, and (iv) any work performed by Collateral Agent
or Collateral Agent’s Related Persons in connection with or using any Collateral Agent Report or any related documentation. Neither Collateral Agent nor any of
its Related Persons shall have any duties or obligations in connection with or as a result of any Lender receiving a copy of any Collateral Agent Report. Without
limiting the generality of the forgoing, neither Collateral Agent nor any of its Related Persons shall have any responsibility for the accuracy or completeness of
any Collateral Agent Report, or the appropriateness of any Collateral Agent Report for any Lender’s purposes, and shall have no duty or responsibility to correct
or update any Collateral Agent Report or disclose to any Lender any other information not embodied in any Collateral Agent Report, including any supplemental
information obtained after the date of any Collateral Agent Report. Each Lender releases, and agrees that it will not assert, any claim against Collateral Agent or
its Related Persons that in any way relates to any Collateral Agent Report or arises out of any Lender having access to any Collateral Agent Report or any
discussion of its contents, and agrees to indemnify and hold harmless Collateral Agent and its Related Persons from all claims, liabilities and expenses relating to
a breach by any Lender arising out of such Lender’s access to any Collateral Agent Report or any discussion of its contents.
6. Indemnification. Each Lender agrees to reimburse Collateral Agent and each of its Related Persons (to the extent not reimbursed by any Loan
Party as required under the Loan Documents (including pursuant to Section 12.2 of the Agreement)) promptly upon demand for its Pro Rata Share of any out-of-
pocket costs and expenses (including, without limitation, fees, charges and disbursements of financial, legal and other advisors and any taxes or insurance paid
in the name of, or on behalf of, any Loan Party) incurred by Collateral Agent or any of its Related Persons in connection with the preparation, syndication,
execution, delivery, administration, modification, amendment, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations,
through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena
or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to, its rights or responsibilities under, any Loan
Document. Each Lender further agrees to indemnify Collateral Agent and each of its Related Persons (to the extent not reimbursed by any Loan Party as
required under the Loan Documents (including pursuant to Section 12.2 of the Agreement)), ratably according to its Pro Rata Share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, to
the extent not indemnified by the applicable Lender, taxes, interests and penalties imposed for not properly withholding or backup withholding on payments
made to or for the account of any Lender) that may be imposed on, incurred by, or asserted against Collateral Agent or any of its Related Persons in any matter
relating to or arising out of, in connection with or as a result of any Loan Document or any other act, event or transaction related, contemplated in or attendant to
any such document, or, in each case, any action taken or omitted to be taken by Collateral Agent or any of its Related Persons under or with respect to the
foregoing; provided that no Lender shall be liable to Collateral Agent or any of its Related Persons under this Section 6 of this Exhibit B to the extent such liability
has resulted from the gross negligence or willful misconduct of Collateral Agent or, as the case may be, such Related Person, as determined by a final non-
appealable judgment of a court of competent jurisdiction. To the extent required by any applicable Requirement of Law, Collateral Agent may withhold from any
payment to any Lender under a Loan Document an amount equal to any applicable withholding tax. If the Internal Revenue Service or any other Governmental
Authority asserts a claim that Collateral Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason, or if Collateral
Agent reasonably determines that it was required to withhold taxes from a prior payment to or for the account of any Lender but failed to do so, such Lender
shall promptly indemnify Collateral Agent fully for all amounts paid, directly or indirectly, by Collateral Agent as tax or otherwise, including penalties and interest,
and together with all expenses incurred by Collateral Agent. Collateral Agent may offset against any payment to any Lender under a Loan Document, any
applicable withholding tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts
for which Collateral Agent is entitled to indemnification from such Lender under the immediately preceding sentence of this Section 6 of this Exhibit B.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
7. Successor Collateral Agent. Collateral Agent may resign at any time by delivering notice of such resignation to the Lenders and Borrower,
effective on the date set forth in such notice or, if no such date is set forth therein, upon the date such notice shall be effective, in accordance with the terms of
this Section 7 of this Exhibit B. If Collateral Agent delivers any such notice, the Required Lenders shall have the right to appoint a successor Collateral Agent. If,
after 30 days after the date of the retiring Collateral Agent’s notice of resignation, no successor Collateral Agent has been appointed by the Required Lenders
and has accepted such appointment, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent from among the
Lenders. Effective immediately upon its resignation, (a) the retiring Collateral Agent shall be discharged from its duties and obligations under the Loan
Documents, (b) the Lenders shall assume and perform all of the duties of Collateral Agent until a successor Collateral Agent shall have accepted a valid
appointment hereunder, (c) the retiring Collateral Agent and its Related Persons shall no longer have the benefit of any provision of any Loan Document other
than with respect to any actions taken or omitted to be taken while such retiring Collateral Agent was, or because such Collateral Agent had been, validly acting
as Collateral Agent under the Loan Documents, and (d) subject to its rights under Section 2(b) of this Exhibit B, the retiring Collateral Agent shall take such
action as may be reasonably necessary to assign to the successor Collateral Agent its rights as Collateral Agent under the Loan Documents. Effective
immediately upon its acceptance of a valid appointment as Collateral Agent, a successor Collateral Agent shall succeed to, and become vested with, all the
rights, powers, privileges and duties of the retiring Collateral Agent under the Loan Documents.
8. Release of Collateral. Each Lender hereby consents to the release and hereby directs Collateral Agent to release (or in the case of clause (b)(ii)
below, release or subordinate) the following:
(a) any Guarantor if all of the stock of such Subsidiary owned by Borrower is sold or transferred in a transaction permitted under the Loan
Documents (including pursuant to a valid waiver or consent), to the extent that, after giving effect to such transaction, such Subsidiary would not be required to
guaranty any Obligations pursuant to any Loan Document; and
(b) any Lien held by Collateral Agent for the benefit of the Secured Parties against (i) any Collateral that is sold or otherwise disposed of by any
Loan Party in a transaction permitted by the Loan Documents (including pursuant to a valid waiver or consent), (ii) any Collateral subject to a Lien that is
expressly permitted under clause (c) of the definition of the term “Permitted Lien” and (iii) all of the Collateral and any Loan Party, upon (A) termination of all of
the Commitments, (B) the payment in full in cash of all of the Obligations (other than inchoate indemnity obligations for which no claim has been made), and (C)
to the extent requested by Collateral Agent, receipt by Collateral Agent and Lenders of liability releases from any Loan Party in form and substance acceptable
to Collateral Agent (the satisfaction of the conditions in this clause (iii), the “Termination Date”).
9. Setoff and Sharing of Payments. In addition to any rights now or hereafter granted under any applicable Requirement of Law and not by way of
limitation of any such rights, upon the occurrence and during the continuance of any Event of Default and subject to Section 10(d) of this Exhibit B, each Lender
is hereby authorized at any time or from time to time upon the direction of Collateral Agent, without notice to any Loan Party or any other Person, any such
notice being hereby expressly waived, to setoff and to appropriate and to apply any and all balances held by it at any of its offices for the account of Borrower
(regardless of whether such balances are then due to any Loan Party) and any other properties or assets at any time held or owing by that Lender or that holder
to or for the credit or for the account of any Loan Party against and on account of any of the Obligations that are not paid when due. Any Lender exercising a
right of setoff or otherwise receiving any payment on account of the Obligations in excess of its Pro Rata Share thereof shall purchase for cash (and the other
Lenders or holders shall sell) such participations in each such other Lender’s or holder’s Pro Rata Share of the Obligations as would be necessary to cause such
Lender to share the amount so offset or otherwise received with each other Lender or holder in accordance with their respective Pro Rata Shares of the
Obligations. Each Loan Party agrees, to the fullest extent permitted by law, that (a) any Lender may exercise its right to offset with respect to amounts in excess
of its Pro Rata Share of the Obligations and may purchase participations in accordance with the preceding sentence and (b) any Lender so purchasing a
participation in the Term Loans made or other Obligations held by other Lenders or holders may exercise all rights of offset, bankers’ liens, counterclaims or
similar rights with respect to such participation as fully as if such Lender or holder were a direct holder of the Term Loans and the other Obligations in
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
the amount of such participation. Notwithstanding the foregoing, if all or any portion of the offset amount or payment otherwise received is thereafter recovered
from the Lender that has exercised the right of offset, the purchase of participations by that Lender shall be rescinded and the purchase price restored without
interest.
10. Advances; Payments; Non-Funding Lenders; Actions in Concert.
(a) Advances; Payments. If Collateral Agent receives any payment with respect to a Term Loan for the account of the Lenders on or prior to
2:00 p.m. (New York time) on any Business Day, Collateral Agent shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment on such
Business Day. If Collateral Agent receives any payment with respect to a Term Loan for the account of Lenders after 2:00 p.m. (New York time) on any Business
Day, Collateral Agent shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment on the next Business Day.
(b) Return of Payments.
(i) If Collateral Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been
or will be received by Collateral Agent or on behalf of from any Loan Party and such related payment is not received by Collateral Agent, then Collateral Agent
will be entitled to recover such amount (including interest accruing on such amount at the rate otherwise applicable to such Obligation) from such Lender on
demand without setoff, counterclaim or deduction of any kind.
(ii) If Collateral Agent determines at any time that any amount received by Collateral Agent under any Loan Document must be
returned to any Loan Party or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of any
Loan Document, Collateral Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Collateral Agent on
demand any portion of such amount that Collateral Agent has distributed to such Lender, together with interest at such rate, if any, as Collateral Agent is
required to pay to any Loan Party or such other Person, without setoff, counterclaim or deduction of any kind and Collateral Agent will be entitled to set off
against future distributions to such Lender any such amounts (with interest) that are not repaid on demand.
(c) Actions in Concert . Anything in this Agreement to the contrary notwithstanding, each Lender hereby agrees with each other Lender that no
Lender shall take any action to protect or enforce its rights arising out of any Loan Document (including exercising any rights of setoff) without first obtaining the
prior written consent of Collateral Agent or Required Lenders, it being the intent of Lenders that any such action to protect or enforce rights under any Loan
Document shall be taken in concert and at the direction or with the consent of Collateral Agent or Required Lenders.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Loan Payment Request Form
Fax To: (212) 993-1698 Date: _____________________
LOAN PAYMENT:
From Account #
EXHIBIT C
Apollo Endosurgery US, Inc.
To Account #:
(Deposit Account #)
(Loan Account #)
Principal
$
and/or Interest
$
Authorized Signature:
Print Name/Title:
LOAN ADVANCE:
Phone Number:
Complete Outstanding Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire.
From Account #:
To Account #:
(Loan Account #)
(Deposit Account #)
Amount of Advance
$
All of each Loan Party’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an
advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text
thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such
date:
Authorized Signature:
Print Name/Title:
Phone Number:
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
OUTGOING WIRE REQUEST:
Complete only if all or a portion of funds from the loan advance above is to be wired.
Beneficiary Name:
Beneficiary Bank:
City and State:
Amount of Wire:
Account Number:
Beneficiary Bank Transit (ABA) #:
Beneficiary Bank Code (Swift, Soft, Chip, etc.):
Intermediary Bank:
For Further Credit to:
Special Instruction:
Transit (ABA) #:
(For International Wire Only)
By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms and conditions set forth in the agreements(s)
covering funds transfer service(s), which agreements(s) were previously received and executed by me (us).
Authorized Signature:
Print Name/Title:
Telephone #:
2nd Signature (if required):
Print Name/Title:
Telephone #:
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT D
Compliance Certificate
TO:
FROM:
SOLAR CAPITAL LTD., as Collateral Agent and Lender
Apollo Endosurgery US, Inc.
The undersigned authorized officer (“ Officer”) of Apollo Endosurgery US, Inc. (“ Borrower”), hereby certifies that in accordance with the terms and conditions of
the Loan and Security Agreement dated as of March 15, 2019, by and among Borrower, Apollo Endosurgery, Inc., Apollo Endosurgery International LLC, Lpath
Therapeutics Inc., Apollo Endosurgery UK Ltd, Apollo Endosurgery Costa Rica S.R.L., Collateral Agent, and the Lenders from time to time party thereto (the
“Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings given them in the Loan Agreement),
(a) Each Loan Party is in complete compliance for the period ending _______________ with all required covenants except as noted below;
(b) There are no defaults or Events of Default, except as noted below;
(c) Except as noted below, all representations and warranties of each Loan Party stated in the Loan Documents are true and correct in all material
respects on this date and for the period described in (a), above; provided, however, that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly
referring to a specific date shall be true, accurate and complete in all material respects as of such date.
(d) Each Loan Party, and each of each Loan Party’s Subsidiaries, has timely filed all required tax returns and reports, each Loan Party, and each of each
Loan Party’s Subsidiaries, has timely paid all foreign, federal, state, and local taxes, assessments, deposits and contributions owed by each Loan Party, or
Subsidiary, except, in each case as otherwise permitted pursuant to the terms of Section 5.8 of the Loan Agreement;
(e) No Liens have been levied or claims made against any Loan Party or any of its Subsidiaries relating to unpaid employee payroll or benefits of which
any Loan Party has not previously provided written notification to Collateral Agent and the Lenders.
Attached are the required documents, if any, supporting our certification(s). The Officer, on behalf of each Loan Party, further certifies that the attached financial
statements are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except
as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to
year-end audit adjustments as to the interim financial statements.
Please indicate compliance status since the last Compliance Certificate by circling Yes, No, or N/A under “Complies” column.
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
1)
2)
3)
4)
5)
6)
7)
8)
Reporting Covenant
Requirement
Actual
Complies
Monthly financial statements
Quarterly financial statements
Annual (CPA Audited) statements
Monthly within 30 days
Quarterly within 45 days
Within 90 days after FYE
Annual Financial Projections/Budget (prepared on
a monthly basis)
Compliance Certificate
Annually (within earlier 10 days of approval or
February 28 of such year), and when revised
Monthly within 30 days
IP Report
When required
Yes
Yes
Yes
Yes
Yes
Yes
No
No
No
No
No
No
N/A
N/A
N/A
N/A
N/A
N/A
Total amount of Borrower’s cash and cash
equivalents at the last day of the measurement
period
Total amount of Borrower’s Subsidiaries’ cash and
cash equivalents at the last day of the
measurement period
$________
Yes
No
N/A
$________
Yes
No
N/A
Updates to Deposit and Securities Accounts
(Please list all new accounts since the last Compliance Certificate; attach separate sheet if additional space needed)
Institution Name
Account Number
New Account?
Account Control Agreement in place?
1)
2)
3)
4)
Financial Covenants
Yes
Yes
Yes
Yes
No
No
No
No
Yes
Yes
Yes
Yes
No
No
No
No
Minimum Liquidity Covenant
(A) Qualified Cash
(B) A/P not paid within 120
days from invoice date
Minimum Specified Product Revenue
(period ending __________)
(A) Actual Specified Product Revenue
$___________
(B) Minimum Specified
Product Revenue per Section
7.13(b) $____________
Complies with
Minimum Liquidity
Requirement (Is (B)
plus $10,000,000 less
than (A))?
Complies with
Minimum Specified
Product Revenue (Is
(A) greater than or
equal to (B))?
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Have there been any changes in Key Persons since the last Compliance Certificate?
Have there been any transfers/sales/disposals/retirement of Collateral or IP prohibited by the Loan Agreement?
Have there been any new or pending claims or causes of action against any Loan Party that involve more than Five Hundred
Thousand Dollars ($500,000.00)?
Has any Loan Party or any Subsidiary entered into or amended any Material Agreement? If yes, please explain and provide a
copy of the Material Agreement(s) and/or amendment(s).
Has each Loan Party provided the Collateral Agent with all notices required to be delivered under Sections 6.2(a) and 6.2(b) of
the Loan Agreement?
Yes
Yes
No
No
Yes
No
Yes
Yes
No
No
Other Matters
1)
2)
3)
4)
5)
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exceptions
Please explain any exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions.” Attach separate sheet if additional space
needed.)
APOLLO ENDOSURGERY US, INC.
By:
Name:
Title:
Date:
COLLATERAL AGENT USE ONLY
Received by:
Verified by:
Compliance Status: Yes No
Date:
Date:
68
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exhibit E-1
CORPORATE BORROWING CERTIFICATE
BORROWER:
Lender(s):
Apollo Endosurgery, Inc.
SOLAR CAPITAL LTD., as Collateral Agent and Lender
DATE: March __, 2019
I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware.
3. Attached hereto as Exhibit A and Exhibit B, respectively, are true, correct and complete copies of (i) Borrower’s Certificate of Incorporation (including
amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Bylaws.
Neither such Certificate of Incorporation nor such Bylaws have been amended, annulled, rescinded, revoked or supplemented, and such Certificate of
Incorporation and such Bylaws remain in full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s board of directors at a duly held meeting of such directors (or pursuant to a unanimous
written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way modified,
repealed, rescinded, amended or revoked, and the Lenders may rely on them until each Lender receives written notice of revocation from Borrower.
[Balance of Page Intentionally Left Blank]
69
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
RESOLVED, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf
of Borrower:
Name
Title
Signature
Authorized to Add or Remove
Signatories
□
□
□
□
RESOLVED FURTHER, that any one of the persons designated above with a checked box beside his or her name may, from time to time, add
or remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.
RESOLVED FURTHER, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from the Lenders.
Execute Loan Documents. Execute any loan documents any Lender requires.
Grant Security. Grant Collateral Agent a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an
interest and receive cash or otherwise use the proceeds.
Pay Fees. Pay fees under the Loan Agreement or any other Loan Document.
Further Acts. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including
documents or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.
RESOLVED FURTHER, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
[Balance of Page Intentionally Left Blank]
70
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
5. The persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.
By:
Name:
Title:
*** If the Secretary, Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in paragraph 4 as one of the
authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.
I, the __________________________ of Borrower, hereby certify as to paragraphs 1 through 5 above, as
[print title]
of the date set forth above.
By:
Name:
Title:
71
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT A
Certificate of Incorporation (including amendments)
[see attached]
72
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT B
Bylaws
[see attached]
73
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exhibit E-2
CORPORATE BORROWING CERTIFICATE
BORROWER:
Lender(s):
Apollo Endosurgery US, Inc.
SOLAR CAPITAL LTD., as Collateral Agent and Lender
DATE: March __, 2019
I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware.
3. Attached hereto as Exhibit A and Exhibit B, respectively, are true, correct and complete copies of (i) Borrower’s Certificate of Incorporation (including
amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Bylaws.
Neither such Certificate of Incorporation nor such Bylaws have been amended, annulled, rescinded, revoked or supplemented, and such Certificate of
Incorporation and such Bylaws remain in full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s board of directors at a duly held meeting of such directors (or pursuant to a unanimous
written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way modified,
repealed, rescinded, amended or revoked, and the Lenders may rely on them until each Lender receives written notice of revocation from Borrower.
[Balance of Page Intentionally Left Blank]
74
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
RESOLVED, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf
of Borrower:
Name
Title
Signature
Authorized to Add or Remove
Signatories
□
□
□
□
RESOLVED FURTHER, that any one of the persons designated above with a checked box beside his or her name may, from time to time, add
or remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.
RESOLVED FURTHER, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from the Lenders.
Execute Loan Documents. Execute any loan documents any Lender requires.
Grant Security. Grant Collateral Agent a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an
interest and receive cash or otherwise use the proceeds.
Pay Fees. Pay fees under the Loan Agreement or any other Loan Document.
Further Acts. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including
documents or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.
RESOLVED FURTHER, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
[Balance of Page Intentionally Left Blank]
75
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
5. The persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.
By:
Name:
Title:
*** If the Secretary, Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in paragraph 4 as one of the
authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.
I, the __________________________ of Borrower, hereby certify as to paragraphs 1 through 5 above, as
[print title]
of the date set forth above.
By:
Name:
Title:
76
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT A
Certificate of Incorporation (including amendments)
[see attached]
77
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT B
Bylaws
[see attached]
78
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exhibit E-3
CORPORATE BORROWING CERTIFICATE
BORROWER:
Lender(s):
Apollo Endosurgery International LLC
SOLAR CAPITAL LTD., as Collateral Agent and Lender
DATE: March __, 2019
I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware.
3. Attached hereto as Exhibit A and Exhibit B, respectively, are true, correct and complete copies of (i) Borrower’s Certificate of Formation (including
amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Limited
Liability Company Agreement. Neither such Certificate of Formation nor such Limited Liability Company Agreement have been amended, annulled, rescinded,
revoked or supplemented, and such Certificate of Formation and such Limited Liability Company Agreement remain in full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s board of managers at a duly held meeting of such managers (or pursuant to a
unanimous written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way
modified, repealed, rescinded, amended or revoked, and the Lenders may rely on them until each Lender receives written notice of revocation from Borrower.
[Balance of Page Intentionally Left Blank]
79
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
RESOLVED, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf
of Borrower:
Name
Title
Signature
Authorized to Add or
Remove Signatories
□
□
□
□
RESOLVED FURTHER, that any one of the persons designated above with a checked box beside his or her name may, from time to time, add
or remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.
RESOLVED FURTHER, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from the Lenders.
Execute Loan Documents. Execute any loan documents any Lender requires.
Grant Security. Grant Collateral Agent a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an
interest and receive cash or otherwise use the proceeds.
Pay Fees. Pay fees under the Loan Agreement or any other Loan Document.
Further Acts. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including
documents or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.
RESOLVED FURTHER, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
[Balance of Page Intentionally Left Blank]
80
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
5. The persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.
By:
Name:
Title:
*** If the Secretary, Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in paragraph 4 as one of the
authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.
I, the __________________________ of Borrower, hereby certify as to paragraphs 1 through 5 above, as
[print title]
of the date set forth above.
By:
Name:
Title:
81
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT A
Certificate of Formation (including amendments)
[see attached]
82
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT B
Limited Liability Company Agreement
[see attached]
83
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exhibit E-4
CORPORATE BORROWING CERTIFICATE
BORROWER:
Lender(s):
Lpath Therapeutics Inc.
SOLAR CAPITAL LTD., as Collateral Agent and Lender
DATE: March __, 2019
I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware.
3. Attached hereto as Exhibit A and Exhibit B, respectively, are true, correct and complete copies of (i) Borrower’s Certificate of Incorporation (including
amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Bylaws.
Neither such Certificate of Incorporation nor such Bylaws have been amended, annulled, rescinded, revoked or supplemented, and such Certificate of
Incorporation and such Bylaws remain in full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s board of directors at a duly held meeting of such directors (or pursuant to a unanimous
written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way modified,
repealed, rescinded, amended or revoked, and the Lenders may rely on them until each Lender receives written notice of revocation from Borrower.
[Balance of Page Intentionally Left Blank]
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
RESOLVED, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf
of Borrower:
Name
Title
Signature
Authorized to Add or Remove
Signatories
□
□
□
□
RESOLVED FURTHER, that any one of the persons designated above with a checked box beside his or her name may, from time to time, add
or remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.
RESOLVED FURTHER, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from the Lenders.
Execute Loan Documents. Execute any loan documents any Lender requires.
Grant Security. Grant Collateral Agent a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an
interest and receive cash or otherwise use the proceeds.
Pay Fees. Pay fees under the Loan Agreement or any other Loan Document.
Further Acts. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including
documents or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.
RESOLVED FURTHER, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
[Balance of Page Intentionally Left Blank]
85
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
5. The persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.
By:
Name:
Title:
*** If the Secretary, Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in paragraph 4 as one of the
authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.
I, the __________________________ of Borrower, hereby certify as to paragraphs 1 through 5 above, as
[print title]
of the date set forth above.
By:
Name:
Title:
86
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT A
Certificate of Incorporation (including amendments)
[see attached]
87
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT B
Bylaws
[see attached]
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EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Exhibit E-5
CORPORATE CERTIFICATE
GUARANTOR:
Lender(s):
Apollo Endosurgery Costa Rica S.R.L.
. Company ID 3 – 102 – 683842
SOLAR CAPITAL LTD., as Collateral Agent and Lender
DATE: March __, 2019
I hereby certify as follows, as of the date set forth above:
1. I am the General Manager , of Borrower. My title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a company (“Sociedad de Responsabilidad Limitada”) existing under the laws of the Republic of
Costa Rica.
3. Attached hereto as Exhibit _____ and Exhibit ______, respectively, are true, correct and complete copies of (i) Borrower’s Notarial Certificate of Incorporation,
as filed with the Costa Rican National Registry in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Charter, Articles of
Incorporation (including amendments). As of this date, neither such Certificate of Incorporation nor such Charter have been amended, annulled, rescinded,
revoked or supplemented, and such Certificate of Incorporation and such Charter remain in full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s Quotaholders in an extraordinary General Assembly at a duly held meeting of such
quota-holders (or pursuant to a unanimous written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date
hereof and have not been in any way modified, repealed, rescinded, amended or revoked, and the Lenders may rely on them until each Lender receives written
notice of revocation from Borrower.
89
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
RESOLVED, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, has been properly
authorized in a formal Quotaholders Assembly to act on behalf of Borrower and , as such, to perform and execute the so called Loan and Security
Agreement as well as any other document related thereto. Hence, the following Signing Authorities have the right, power and ability to execute and
deliver the LSA and such agreement constitutes a valid and legally binding obligation of AECR, enforceable against AECR in accordance with its terms.
Name
Title
Signature
Authorized to Add or Remove
Signatories
□
□
□
□
RESOLVED FURTHER, that any one of the persons designated above with a checked box beside his or her name may, from time to time, add or
remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.
RESOLVED FURTHER, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from the Lenders.
Execute Loan Documents. Execute any loan documents any Lender requires.
Grant Security. Grant Collateral Agent a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an interest and
receive cash or otherwise use the proceeds.
Pay Fees. Pay fees under the Loan Agreement or any other Loan Document.
Further Acts. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including documents
or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.
RESOLVED FURTHER, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
[Balance of Page Intentionally Left Blank]
90
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
5. The persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.
By:
Name:
Title:
91
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
EXHIBIT F
ACH LETTER
SOLAR CAPITAL LTD.
500 Park Avenue, 3rd Floor
New York, NY 10022
Attention: Neil Bonanno
Fax: (212) 993-1698
Email: bonanno@solarcapltd.com
Re: Loan and Security Agreement dated as of March 15, 2019 (the “Agreement”) by and among Apollo Endosurgery, Inc., a Delaware corporation
(“Parent”), Apollo Endosurgery US, Inc., a Delaware corporation (“Apollo Endo”), Apollo Endosurgery International, LLC, a Delaware limited liability
company (“Apollo International”), Lpath Therapeutics Inc., a Delaware corporation (“Lpath”; together with Parent, Apollo Endo, Apollo International,
individually and collectively, jointly and severally, “Borrower”), Solar Capital Ltd. (“Solar”), as collateral agent (in such capacity, “Collateral Agent”) and the
Lenders listed on Schedule 1.1 thereof or otherwise a party thereto from time to time, including Solar in its capacity as a Lender and the Lenders listed
on Schedule 1.1 thereof (each a “Lender” and collectively, the “Lenders”). Capitalized terms used but not otherwise defined herein shall have the
meanings given them under the Agreement.
In connection with the above referenced Agreement, the Borrower hereby authorizes the Collateral Agent to, at its discretion and with prior notice of at least one
(1) Business Day, initiate debit entries to the Borrower’s account indicated below (i) on each payment date of all Obligations then due and owing, (ii) at any time
any payment due and owing with respect to Lender Expenses, and (iii) upon an Event of Default, any other Obligations outstanding, in each case pursuant to
Section 2.3(e) of the Agreement. The Borrower authorizes the depository institution named below to debit to such account.
DEPOSITORY NAME
CITY
TRANSIT/ABA NUMBER
BRANCH
STATE AND ZIP CODE
ACCOUNT NUMBER
This authority will remain in full force and effect so long as any amounts are due under the Agreement.
92
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
BORROWER:
APOLLO ENDOSURGERY, INC.
APOLLO ENDOSURGERY INTERNATIONAL, LLC
By:
Name:
Title:
APOLLO ENDOSURGERY US, INC.
By:
Name:
Title:
93
By:
Name:
Title:
LPATH THERAPEUTICS INC.
By:
Name:
Title:
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
The Board of Directors
Apollo Endosurgery, Inc.:
We consent to the incorporation by reference in the registration statements (No. 333-215817) on Form S-8, (No. 333-218741) on Form S-8, and (No. 333-
221893) on Form S-3 of Apollo Endosurgery, Inc. of our report dated March 1, 2018, with respect to the consolidated balance sheets of Apollo Endosurgery,
Inc. and subsidiaries as of December 31, 2017 and 2016, and the related consolidated statements of operations and comprehensive loss, changes in redeemable
preferred stock and stockholders’ equity, and cash flows for each of the years then ended, and the related notes (collectively, the “consolidated financial
statements”), which report appears in the December 31, 2017 annual report on Form 10-K of Apollo Endosurgery, Inc.
Austin, Texas
March 18, 2019
/s/ KPMG LLP
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES EXCHANGE ACT, AS ADOPTED PURSUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
Exhibit 31.1
I, Todd Newton, certify that:
1
2
3
4
I have reviewed this Annual Report on Form 10-K of Apollo Endosurgery, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of circumstances under which such statements were made, not misleading with respect to the period covered by this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
a Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
b Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision;
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect,
the registrant’s internal control over financial reporting; and
5
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a
b
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely
to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over
financial reporting.
Date: March 18, 2019
By:
/s/ Todd Newton
Todd Newton
Chief Executive Officer
(Principal Executive Officer)
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES EXCHANGE ACT, AS ADOPTED PURSUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
Exhibit 31.2
I, Stefanie Cavanaugh, certify that:
1
2
3
4
I have reviewed this Annual Report on Form 10-K of Apollo Endosurgery, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of circumstances under which such statements were made, not misleading with respect to the period covered by this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
a Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
b Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision;
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect,
the registrant’s internal control over financial reporting; and
5
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a
b
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely
to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over
financial reporting.
Date: March 18, 2019
By:
/s/Stefanie Cavanaugh
Stefanie Cavanaugh
Chief Financial Officer
(Principal Financial Officer)
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of
Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), Todd Newton, Chief Executive Officer of Apollo Endosurgery, Inc. (the “Company”), hereby
certifies that:
1
2
The Company’s Annual Report on Form 10-K for the period ended December 31, 2018, to which this Certification is attached as Exhibit 32.1 (the
“Annual Report”), fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and
The information contained in the Annual Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 18, 2019
By:
/s/ Todd Newton
Todd Newton
Chief Executive Officer
(Principal Executive Officer)
A signed original of this written statement required by Section 906 has been provided to Apollo Endosurgery, Inc. and will be retained by Apollo Endosurgery,
Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
This certification accompanies the Form 10-K to which it relates, is not deemed filed with the Securities and Exchange Commission, and is not to be incorporated
by reference into any filing of Apollo Endosurgery, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended
(whether made before or after the date of the Form 10-K), irrespective of any general incorporation language contained in such filing.
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.2
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of
Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), Stefanie Cavanaugh, Chief Financial Officer of Apollo Endosurgery, Inc. (the “Company”),
hereby certifies that:
1
2
The Company’s Annual Report on Form 10-K for the period ended December 31, 2018, to which this Certification is attached as Exhibit 32.1 (the
“Annual Report”), fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and
The information contained in the Annual Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 18, 2019
By:
/s/Stefanie Cavanaugh
Stefanie Cavanaugh
Chief Financial Officer
(Principal Financial Officer)
A signed original of this written statement required by Section 906 has been provided to Apollo Endosurgery, Inc. and will be retained by Apollo Endosurgery,
Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
This certification accompanies the Form 10-K to which it relates, is not deemed filed with the Securities and Exchange Commission, and is not to be incorporated
by reference into any filing of Apollo Endosurgery, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended
(whether made before or after the date of the Form 10-K), irrespective of any general incorporation language contained in such filing.
EDGAR Stream is a copyright of Issuer Direct Corporation, all rights reserved.