Item 1. Condensed Consolidated Financial Statements
The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
The accompanying notes are an integral part of these condensed consolidated financial statements.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(in thousands, except share and per share data)
1. Organization
Waitr Holdings Inc., a Delaware corporation, together with its wholly-owned subsidiaries (the “Company,” “Waitr,” “we,” “us” and “our”), operates an online food ordering platform, providing delivery, carryout and dine-in options, connecting restaurants and diners in cities across the United States. In January 2019, Waitr acquired BiteSquad.com, LLC (“Bite Squad”), which also operates an online food ordering platform. The Company connects diners and restaurants via Waitr’s website and mobile application (the “Waitr Platform”) and Bite Squad’s website and mobile application (the “Bite Squad Platform” and together with the Waitr Platform, the “Platforms”). The Company’s Platforms allow consumers to browse local restaurants and menus, track order and delivery status, and securely store previous orders for ease of use and convenience. Restaurants benefit from the online Platforms through increased exposure to consumers for expanded business in the delivery market and carryout sales.
2. Basis of Presentation and Summary of Significant Accounting Policies
Basis of Presentation
The unaudited interim condensed consolidated financial statements and accompanying notes have been prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”) and in accordance with the rules and regulations of the United States Securities and Exchange Commission (“SEC”) as they apply to interim financial information. Accordingly, the interim condensed consolidated financial statements do not include all of the information and notes required by GAAP for complete annual financial statements, although the Company believes that the disclosures made are adequate to make information not misleading.
The unaudited interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto, together with management’s discussion and analysis of financial condition and results of operations, contained in our Annual Report on Form 10-K for the year ended December 31, 2019 (the “2019 Form 10-K”). The interim condensed consolidated financial statements are unaudited, but in the Company’s opinion, include all adjustments that are necessary for a fair presentation of the results for the periods presented. The interim results are not necessarily indicative of results that may be expected for any other interim period or the fiscal year.
During the third quarter of 2020, the Company identified and corrected an immaterial error related to the understatement of an accrued medical contingency that affected previously issued consolidated financial statements. In order to present the impact of the updated estimated liability for the claim, previously issued financial statements have been revised. See Note 9 – Correction of Prior Period Error for additional details, including a summary of the revisions to certain previously reported financial information presented herein for comparative purposes.
Principles of Consolidation
The accompanying unaudited condensed consolidated financial statements include the accounts of the Company and all wholly-owned subsidiaries. Intercompany transactions and balances have been eliminated upon consolidation.
Use of Estimates
The preparation of the unaudited condensed consolidated financial statements in accordance with GAAP requires the Company to make estimates and assumptions that affect the amounts reported in the unaudited condensed consolidated financial statements and accompanying notes. Significant estimates and judgments relied upon in preparing these condensed consolidated financial statements affect the following items:
|
•
|
incurred loss estimates under our insurance policies with large deductibles or retention levels;
|
|
•
|
loss exposure related to claims such as the Medical Contingency (see Note 9 – Correction of Prior Period Error);
|
|
•
|
useful lives of tangible and intangible assets;
|
|
•
|
goodwill and other intangible assets, including the recoverability of intangible assets with finite lives and other long-lived assets; and
|
|
•
|
fair value of assets acquired and liabilities assumed as part of a business combination.
|
6
TABLE_CONTENTS
The Company regularly assesses these estimates and records changes to estimates in the period in which they become known. The Company bases its estimates on historical experience and various other assumptions believed to be reasonable under the circumstances. Changes in the economic environment, financial markets, and any other parameters used in determining these estimates could cause actual results to differ from those estimates.
Liquidity and Capital Resources
The Company sustained losses from its inception through the first quarter of 2020 and experienced declines in working capital through 2019, resulting from changes in market conditions in the online food ordering and delivery industry, particularly increased competition from other national delivery service providers. In addition, the Company invested heavily in sales and marketing efforts in 2019, further reducing its working capital and liquidity, until the suspension of such efforts in the fourth quarter of 2019. In 2020, the Company has deployed capital in a more strategic and conservative manner than in the prior years.
Management implemented several initiatives from late fiscal 2019 into 2020, with a focus on improving revenue per order, cash flow, profitability and liquidity. These initiatives, which included reductions of staff in November 2019 and January 2020, modifications to the Company’s fee structure, the closures of approximately 60 unprofitable, non-core markets in December 2019 and January 2020, and the switch to an independent contractor model for delivery drivers, have resulted in the positive results for the three and nine months ended September 30, 2020. Additionally, in March and May 2020, the Company entered into open market sale agreements with respect to at-the-market offering programs, pursuant to which the Company sold 23,698,720 shares of common stock during the nine months ended September 30, 2020 for net proceeds of approximately $47,574 (see Note 12 – Stockholders’ Equity). As of September 30, 2020, cash on hand was $77,136.
The Company’s working capital and liquid asset (cash on hand) positions as of September 30, 2020 and December 31, 2019 are as follows (in thousands):
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Working capital
|
|
$
|
56,068
|
|
|
$
|
8,466
|
|
Liquid assets
|
|
|
77,136
|
|
|
|
29,317
|
|
We currently expect that our cash on hand and estimated cash flow from operations will be sufficient to meet our working capital needs beyond twelve months; however, there can be no assurance that we will generate cash flow at the levels we anticipate. We continually evaluate additional opportunities to strengthen our liquidity position, fund growth initiatives and/or combine with other businesses by issuing equity or equity-linked securities (in public or private offerings) and/or incurring additional debt.
Impact of COVID-19 on our Business
In December 2019, an outbreak of a new strain of coronavirus (“COVID-19”) began in Wuhan, Hubei Province, China. In March 2020, the World Health Organization declared COVID-19 a pandemic. The COVID-19 pandemic has negatively impacted the global economy, disrupted global supply chains and created significant volatility and disruption of financial markets. The potential impacts and duration of the COVID-19 pandemic on the global economy and on the Company’s business, in particular, are uncertain and may be difficult to assess or predict. The pandemic has resulted in, and may continue to result in, significant disruption of global financial markets, which may reduce the Company’s ability to access capital and continue to operate effectively. The COVID-19 pandemic could also reduce the demand for the Company’s services, and a prolonged recession or additional financial market corrections resulting from the spread of COVID-19 could adversely affect demand for the Company’s services. Additionally, in response to the COVID-19 pandemic, several jurisdictions have implemented or are considering implementing fee caps, fee disclosure requirements and similar measures that could negatively impact the Company’s financial results. To the extent that the COVID-19 pandemic adversely impacts the Company’s business, results of operations, liquidity or financial condition, it may also have the effect of heightening many of the other risks described in the risk factors in the Company’s 2019 Form 10-K.
Waitr has thus far been able to operate during the COVID-19 pandemic. Restrictions on in-restaurant dining have resulted in restaurants utilizing delivery services and has had a positive impact on our business. We have taken several steps to help protect and support our restaurant partners, diners, independent contractor drivers and our employees during the COVID-19 outbreak, including offering no-contact delivery in select markets, offering no-contact grocery delivery in select markets, working with certain restaurant partners to waive diner delivery fees, deploying free marketing programs for certain restaurants and providing masks, gloves and hand sanitizer to drivers. We continue to monitor the impact of the COVID-19 global outbreak, although there remains significant uncertainty related to the public health and economic situation globally.
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TABLE_CONTENTS
Critical Accounting Policies and Estimates
Except as set forth below, there has been no material change to our critical accounting policies and estimates described in the 2019 Form 10-K.
Revenue
The Company generates revenue (“transaction fees”) primarily when diners place an order on one of the Platforms. In the case of diner subscription fees for unlimited delivery, revenue is recognized when payment for the monthly subscription is received. Revenue consists of the following for the periods indicated (in thousands):
|
|
Three Months Ended September 30,
|
|
|
Nine Months Ended September 30,
|
|
|
|
2020
|
|
|
2019
|
|
|
2020
|
|
|
2019
|
|
Transaction fees
|
|
$
|
52,618
|
|
|
$
|
46,400
|
|
|
$
|
156,851
|
|
|
$
|
143,595
|
|
Setup and integration fees
|
|
|
23
|
|
|
|
2,731
|
|
|
|
437
|
|
|
|
4,834
|
|
Other
|
|
|
93
|
|
|
|
70
|
|
|
|
195
|
|
|
|
146
|
|
Total Revenue
|
|
$
|
52,734
|
|
|
$
|
49,201
|
|
|
$
|
157,483
|
|
|
$
|
148,575
|
|
Transaction fees represent the revenue recognized from the Company’s obligation to process orders on the Platforms. The performance obligation is satisfied when the Company successfully processes an order placed on one of the Platforms and the restaurant receives the order at their location. The obligation to process orders on the Platforms represents a series of distinct performance obligations satisfied over time that the Company combines into a single performance obligation. Consistent with the recognition objective in Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with Customers, the variable consideration due to the Company for processing orders is recognized on a daily basis. As an agent of the restaurant in the transaction, the Company recognizes transaction fees earned from the restaurant on the Platform on a net basis. Transaction fees also include a fee charged to the end user customer when they request the order be delivered to their location. Revenue is recognized for diner fees once the delivery service is completed. The contract period for substantially all restaurant contracts is one month as both the Company and the restaurant have the ability to unilaterally terminate the contract by providing notice of termination.
The Company records a receivable when it has an unconditional right to the consideration. The balance of accounts receivable, net was $3,925 and $3,272 as of September 30, 2020 and December 31, 2019, respectively, comprised primarily of credit card receivables due from the credit card processor. These receivables are generally collected in one to six days from the date revenue is generated.
During the nine months ended September 30, 2019, the Company received non-refundable upfront setup and integration fees for onboarding certain restaurants. Setup and integration activities primarily represented administrative activities that allowed the Company to fulfill future performance obligations for these restaurants and did not represent services transferred to the restaurant. However, the non-refundable upfront setup and integration fees charged to restaurants resulted in a performance obligation in the form of a material right related to the restaurant’s option to renew the contract each day rather than provide a notice of termination. Revenue related to setup and integration fees was historically recognized ratably over a two-year period. In connection with modifications to the Company’s fee structure in July 2019, the Company discontinued offering fee arrangements with the upfront, one-time setup and integration fee.
The contract modifications in July 2019 and the effect of such modifications on our measure of progress towards the performance obligations resulted in accelerated recognition of deferred revenue related to the modified contracts. Included in revenue during the three months ended September 30, 2019 is a cumulative adjustment to setup and integration fee revenue of $3,005, which was included in deferred revenue as of August 1, 2019. The cumulative adjustment to revenue was partially offset by write-offs of uncollected setup and integration fees within accounts receivable of $797 and refunds of previously paid setup and integration fees of $320. Further, a portion of our capitalized contract costs pertaining to or allocable to terminated restaurant contracts was recognized in the third quarter of 2019, resulting in an impairment loss of $852. The July 2019 contract modifications had no impact on revenue during the three and nine months ended September 30, 2020.
Costs to Obtain a Contract with a Customer
The Company recognizes an asset for the incremental costs of obtaining a contract with a restaurant and recognizes the expense over the course of the period when the Company expects to recover those costs. The Company has determined that certain internal sales incentives earned at the time when an initial contract is executed meet these requirements. Capitalized sales incentives are amortized to sales and marketing expense on a straight-line basis over the period of benefit. The Company applies a practical expedient to expense costs as incurred for costs to obtain a contract with a customer when the amortization period would have been one year or less.
As a result of the changes in the terms of the contracts related to the modified fee structure introduced in July 2019, the Company changed its estimate of the useful life of the asset for costs to obtain a contract to better reflect the estimated period in which the asset will remain in service. Effective August 1, 2019, the estimated useful life of the asset for costs to obtain a contract from customers,
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TABLE_CONTENTS
previously estimated at two years, was increased to five years. The change in estimate had no material impact on the Company’s results of operations for the three or nine months ended September 30, 2019.
Deferred costs related to obtaining contracts with restaurants were $2,291 and $701 as of September 30, 2020 and December 31, 2019, respectively, out of which $514 and $143, respectively, was classified as current. Amortization of expense for the costs to obtain a contract were $117 and $140 for the three months ended September 30, 2020 and 2019, respectively, and $264 and $591 for the nine months ended September 30, 2020 and 2019, respectively.
Costs to Fulfill a Contract with a Customer
The Company also recognizes an asset for the costs to fulfill a contract with a restaurant when they are specifically identifiable, generate or enhance resources used to satisfy future performance obligations, and are expected to be recovered. The Company has determined that certain costs related to setup and integration activities meet the capitalization criteria under ASC Topic 340-40, Other Assets and Deferred Costs. Costs related to these implementation activities are deferred and then amortized to operations and support expense on a straight-line basis over the period of benefit.
As a result of the changes in the terms of the contracts related to the modified fee structure introduced in July 2019, the Company changed its estimate of the useful life of the asset for costs to fulfill a contract to better reflect the estimated period in which the asset will remain in service. Effective August 1, 2019, the estimated useful life of the asset for costs to fulfill a contract from customers, previously estimated at two years, was increased to five years. The change in estimate had no material impact on the Company’s results of operations for the three or nine months ended September 30, 2019.
Deferred costs related to fulfilling contracts with restaurants were $572 and $270 as of September 30, 2020 and December 31, 2019, respectively, out of which $129 and $56, respectively, was classified as current. Amortization of expense for the costs to fulfill a contract were $28 and $224 for the three months ended September 30, 2020 and 2019, respectively, and $63 and $1,023 for the nine months ended September 30, 2020 and 2019, respectively.
Stock-Based Compensation
The Company records stock-based compensation expense for stock-based compensation awards based on the fair value on the date of grant. The stock-based compensation expense is recognized in our statement of operations ratably over the course of the requisite service period and is recorded in either operations and support, sales and marketing, research and development, or general and administrative expense, depending on the department of the recipient. The Company recognizes forfeitures of stock-based awards as they occur. In the case of an award pursuant to which a performance condition must be met for the award to vest, no stock-based compensation cost is recognized until such time as the performance condition is considered probable of being met, if at all. If the assessment of probability of the performance condition changes, the impact of the change in estimate would be recognized in the period of change. Because of the non-cash nature of share-based compensation, it is added back to net income in arriving at net cash provided by operating activities in our statement of cash flows.
Earnings Per Share
Under GAAP, certain instruments granted in stock-based payment transactions are considered participating securities prior to vesting and are therefore required to be included in the earnings allocation in calculating earnings per share under the two-class method. Companies are required to treat unvested stock-based payment awards with a right to receive non-forfeitable dividends as a separate class of securities in calculating earnings per share, except in cases where the effect of the inclusion of the participating securities would be antidilutive.
Fair Value Measurements
The Company records the fair value of assets and liabilities in accordance with ASC Topic 820, Fair Value Measurement. ASC 820 defines fair value as the price received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date and in the principal or most advantageous market for that asset or liability. Based on the guidance in ASC 820, the Company uses a three-tier fair value hierarchy, prioritizing and defining the types of inputs used to measure fair value depending on the degree to which they are observable. Each fair value measurement is reported in one of the three levels, which is determined by the lowest level input that is significant to the fair value measurement in its entirety. The levels are as follows:
Level 1 — Quoted prices (unadjusted) in active markets for identical assets or liabilities.
Level 2 — Quoted prices for similar assets and liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly through market corroboration, for substantially the full term of the financial instrument.
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TABLE_CONTENTS
Level 3 — Unobservable inputs reflecting the Company’s own assumptions about the inputs used in pricing the asset or liability at fair value.
Certain financial instruments are required to be recorded at fair value. Other financial instruments, including cash, are recorded at cost, which approximates fair value. Additionally, accounts receivable, accounts payable and accrued expenses approximate fair value because of the short-term nature of these financial instruments.
Insurance Reserves
The Company maintains insurance coverage for business risks in customary amounts believed to be sufficient for our operations, including, but not limited to, workers’ compensation, auto and general liability. These plans contain various retention levels for which we provide accruals based on the aggregate of the liability for claims incurred and an estimate for claims incurred but not reported. We review our estimates of claims costs and adjust our estimates when appropriate.
Recent Accounting Pronouncements
Changes to GAAP are established by the Financial Accounting Standards Board (the “FASB”), in the form of Accounting Standards Updates (“ASUs”), to the FASB’s ASCs.
The Company considered the applicability and impact of all ASUs. ASUs not listed below were assessed and determined to be either not applicable or are expected to have minimal impact on these unaudited condensed consolidated financial statements. As an emerging growth company, the Company has elected to use the extended transition period for complying with new or revised financial accounting standards provided pursuant to Section 13 (a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
In August 2020, the FASB issued ASU 2020-06, Debt – Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging – Contracts in Entity’s Own Equity (Subtopic 815-40), which simplifies the accounting for convertible instruments by reducing the number of accounting models for convertible debt, resulting in fewer embedded conversion features being separately recognized from the host contract as compared with current GAAP. The guidance also addresses how convertible instruments are accounted for in the diluted earnings per share calculation. ASU 2020-06 is effective for public business entities for fiscal years beginning after December 15, 2021, including interim period within those fiscal years, with early adoption permitted no earlier than fiscal years beginning after December 15, 2020. The Company is currently evaluating the impacts of the provisions of ASU 2020-06 on its consolidated financial statements and related disclosures.
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes, which simplifies the accounting for income taxes by removing certain exceptions to the general principles for income taxes and also improves consistent application by clarifying and amending existing guidance. ASU 2019-12 is effective for public business entities for fiscal years, and interim periods within those years, beginning after December 15, 2020. For all other entities, the amendments are effective for fiscal years beginning after December 15, 2021, and interim periods within fiscal years beginning after December 15, 2022. Early adoption is permitted, with the amendments to be applied on a retrospective, modified retrospective or prospective basis, depending on the specific amendment. The Company will subject to the requirements of ASU 2019-12 on January 1, 2021. The Company is currently evaluating the impact that adopting this ASU will have on the unaudited condensed consolidated financial statements.
In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820) – Disclosure Framework – Changes to the Disclosure Requirements for Fair Value Measurement, which removes, modifies or adds disclosure requirements regarding fair value measurements. The amendments in this ASU are effective for all entities beginning after December 15, 2019, with amendments on changes in unrealized gains and losses, the range and weighted average of significant unobservable inputs used to develop Level 3 fair value measurements, and narrative description of measurement uncertainty requiring prospective adoption and all other amendments requiring retrospective adoption. The Company adopted ASU 2018-13 on January 1, 2020. The adoption of ASU 2018-13 did not have a material impact on the Company’s disclosures or the unaudited condensed consolidated financial statements.
In June 2018, the FASB issued ASU No. 2018-07, Compensation – Stock Compensation (Topic 718), to simplify the accounting for share-based payments to non-employees by aligning it with the accounting for share-based payments to employees, with certain exceptions. Under the new standard, equity-classified non-employee awards will be initially measured on the grant date and re-measured only upon modification, rather than at each reporting period. Measurement will be based on an estimate of the fair value of the equity instruments to be issued. ASU 2018-07 is effective for public business entities in fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. For all other entities, the standard is effective in fiscal years beginning after December 15, 2019 and interim periods within fiscal years beginning after December 15, 2020. Early adoption is permitted, including in an interim period for which financial statements have not been issued or made available for issuance but not before an entity adopts ASC 606. The Company adopted this standard on January 1, 2020. The Company’s adoption of this ASU did not have a material impact on the unaudited condensed consolidated financial statements.
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TABLE_CONTENTS
In July 2017, the FASB issued ASU No. 2017-11, Earnings Per Share (Topic 260), Distinguishing Liabilities from Equity (Topic 480) and Derivatives and Hedging (Topic 815): I. Accounting for Certain Financial Instruments with Down Round Features; II. Replacement of the Indefinite Deferral for Mandatorily Redeemable Financial Instruments of Certain Nonpublic Entities and Certain Mandatorily Redeemable Noncontrolling Interests with a Scope Exception. Part I of ASU 2017-11 addresses the complexity of accounting for certain financial instruments with down round features. Down round features are features of certain equity-linked instruments (or embedded features) that result in the strike price being reduced based on the pricing of future equity offerings. Current accounting guidance creates cost and complexity for entities that issue financial instruments (such as warrants and convertible instruments) with down round features that require fair value measurement of the entire instrument or conversion option. Part II of ASU 2017-11 addresses the difficulty of navigating ASC Topic 480, Distinguishing Liabilities from Equity, because of the existence of extensive pending content in ASC 480. This pending content is the result of the indefinite deferral of accounting requirements about mandatorily redeemable financial instruments of certain nonpublic entities and certain mandatorily redeemable noncontrolling interests. Part II of ASU 2017-11 does not have an accounting effect. ASU 2017-11 is effective for public business entities for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. For all other entities, the standard is effective for fiscal years beginning after December 15, 2019 and interim periods within fiscal years beginning after December 15, 2020. Early adoption is permitted. As an emerging growth company, the Company will not be subject to the requirements of ASU 2017-11 until December 31, 2020. The Company is currently evaluating the impact that adopting this ASU will have on the unaudited condensed consolidated financial statements.
In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments – Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, to replace the incurred loss impairment methodology under current GAAP with a methodology that reflects expected credit losses and requires consideration of a broader range of reasonable and supportable information to inform credit loss estimates. The Company will be required to use a forward-looking expected credit loss model for accounts receivables, loans, and other financial instruments. ASU 2016-13 is effective for public business entities for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years. For all other entities, the standard is effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. Early adoption is permitted for all entities beginning after December 15, 2018, including interim periods within those fiscal years. The Company will no longer qualify as an emerging growth company on December 31, 2020 and will be subject to the requirements of ASU 2016-13 on January 1, 2021. The Company is currently evaluating the impact that adopting this ASU will have on the unaudited condensed consolidated financial statements.
In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842). The principal objective of ASU 2016-02 is to increase transparency and comparability among organizations by recognizing lease assets and lease liabilities on the consolidated balance sheet. ASU 2016-02 continues to retain a distinction between finance and operating leases but requires lessees to recognize a right-of-use asset representing its right to use the underlying asset for the lease term and a corresponding lease liability on the balance sheet for all leases with terms greater than twelve months. In June 2020, the FASB issued ASU No. 2020-05, which amends the effective date of ASU No. 2016-02 to give immediate relief to certain entities as a result of the widespread adverse economic effects and business disruptions caused by the COVID-19 pandemic. The Company will no longer qualify as an emerging growth company on December 31, 2020, and as a result, the relief granted under ASU 2020-05 will not apply and ASU No. 2016-02 is now effective for the Company on January 1, 2021. The Company is currently analyzing ASU 2016-02, including reviewing the standard, gathering information on the Company’s leasing activities, and drafting accounting policies. We are currently unable to estimate the impact of adopting ASU 2016-02 on our consolidated financial statements.
3. Business Combinations
In January 2019, the Company completed the acquisition of Bite Squad (the “Bite Squad Merger”). Founded in 2012 and based in Minneapolis, Bite Squad operates an online food ordering platform, similar to Waitr’s Platform, through the Bite Squad Platform. Total merger consideration was $335,858, consisting of $197,404 paid in cash, the pay down of $11,880 of indebtedness of Bite Squad and an aggregate of 10,591,968 shares of the Company’s common stock valued at $11.95 per share.
The Bite Squad Merger was considered a business combination in accordance with ASC 805, and was accounted for using the acquisition method. Under the acquisition method of accounting, total merger consideration, acquired assets and assumed liabilities are recorded based on their estimated fair values on the acquisition date, with the excess of the fair value of merger consideration over the fair value of the assets less liabilities acquired recorded as goodwill.
The results of operations of Bite Squad are included in our unaudited condensed financial statements beginning on the acquisition date, January 17, 2019. Revenue and net loss attributable to Bite Squad for the three months ended September 30, 2019 totaled approximately $23,996 and $196,205, respectively, and for the nine months ended September 30, 2019 totaled approximately $73,058 and $208,156, respectively.
In connection with the Bite Squad Merger, the Company incurred direct and incremental costs of $6,956, including debt modification expense of $375, consisting of legal and professional fees, which are included in general and administrative expenses in the unaudited condensed consolidated statement of operations in the nine months ended September 30, 2019.
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TABLE_CONTENTS
Pro-Forma Financial Information (Unaudited)
The supplemental condensed consolidated results of the Company on an unaudited pro forma basis as if the Bite Squad Merger had been consummated on January 1, 2019 are as follows (in thousands):
|
|
Nine Months Ended
|
|
|
|
September 30, 2019
|
|
Net Revenue
|
|
$
|
152,861
|
|
Net Loss
|
|
|
271,366
|
|
These pro forma results were based on estimates and assumptions, which the Company believes are reasonable. They are not the results that would have been realized had the Company been a consolidated company during the period presented and are not indicative of consolidated results of operations in future periods. The pro forma results include adjustments primarily related to acquisition accounting adjustments and interest expense associated with the related Additional Term Loans (see Note 7 – Debt) in connection with the Bite Squad Merger. Acquisition costs and other non-recurring charges incurred are included in the period presented.
4. Accounts Receivable, Net
Accounts receivable consist of the following (in thousands):
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Credit card receivables
|
|
$
|
3,855
|
|
|
$
|
2,803
|
|
Receivables from restaurants and customers
|
|
|
375
|
|
|
|
950
|
|
Accounts receivable
|
|
$
|
4,230
|
|
|
$
|
3,753
|
|
Less: allowance for doubtful accounts and chargebacks
|
|
|
(305
|
)
|
|
|
(481
|
)
|
Accounts receivable, net
|
|
$
|
3,925
|
|
|
$
|
3,272
|
|
5. Intangibles Assets and Goodwill
Intangible Assets
Intangible assets with finite useful lives are amortized using the straight-line method over their estimated useful lives and include internally developed software, as well as software to be otherwise marketed, and trademarks/trade name/patents and customer relationships. The Company has determined that the Waitr trademark intangible asset is an indefinite-lived asset and therefore is not subject to amortization but is evaluated annually for impairment. The Bite Squad trade name intangible asset, however, is being amortized over its estimated useful life.
Intangible assets are stated at cost or acquisition-date fair value less accumulated amortization and consist of the following (in thousands):
|
|
As of September 30, 2020
|
|
|
|
Gross Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Accumulated
Impairment
|
|
|
Intangible
Assets, Net
|
|
Software
|
|
$
|
23,609
|
|
|
$
|
(5,571
|
)
|
|
$
|
(11,823
|
)
|
|
$
|
6,215
|
|
Trademarks/Trade name/Patents
|
|
|
5,405
|
|
|
|
(3,076
|
)
|
|
|
—
|
|
|
|
2,329
|
|
Customer Relationships
|
|
|
82,320
|
|
|
|
(10,072
|
)
|
|
|
(57,378
|
)
|
|
|
14,870
|
|
Total
|
|
$
|
111,334
|
|
|
$
|
(18,719
|
)
|
|
$
|
(69,201
|
)
|
|
$
|
23,414
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2019
|
|
|
|
Gross Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Accumulated
Impairment
|
|
|
Intangible
Assets, Net
|
|
Software
|
|
$
|
21,223
|
|
|
$
|
(4,113
|
)
|
|
$
|
(11,795
|
)
|
|
$
|
5,315
|
|
Trademarks/Trade name/Patents
|
|
|
5,405
|
|
|
|
(1,725
|
)
|
|
|
—
|
|
|
|
3,680
|
|
Customer Relationships
|
|
|
82,343
|
|
|
|
(8,199
|
)
|
|
|
(57,378
|
)
|
|
|
16,766
|
|
Total
|
|
$
|
108,971
|
|
|
$
|
(14,037
|
)
|
|
$
|
(69,173
|
)
|
|
$
|
25,761
|
|
During the nine months ended September 30, 2020, the Company capitalized approximately $2,387 of software costs related to the development of the Platforms. The estimated useful life of the Company’s capitalized software costs is three years.
12
TABLE_CONTENTS
The Company recorded amortization expense of $1,581 and $4,328 for the three months ended September 30, 2020 and 2019, respectively, and $4,682 and $12,273 for the nine months ended September 30, 2020 and 2019, respectively. Estimated future amortization expense of intangible assets is as follows (in thousands):
|
|
Amortization
|
|
The remainder of 2020
|
|
$
|
2,660
|
|
2021
|
|
|
7,013
|
|
2022
|
|
|
4,273
|
|
2023
|
|
|
3,155
|
|
2024
|
|
|
2,635
|
|
Thereafter
|
|
|
3,673
|
|
Total future amortization
|
|
$
|
23,409
|
|
Goodwill
The Company’s goodwill balance is as follows as of September 30, 2020 and December 31, 2019 (in thousands):
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Balance, beginning of period
|
|
$
|
106,734
|
|
|
$
|
1,408
|
|
Acquisitions during the period
|
|
|
—
|
|
|
|
224,538
|
|
Impairments during the period
|
|
|
—
|
|
|
|
(119,212
|
)
|
Balance, end of period
|
|
$
|
106,734
|
|
|
$
|
106,734
|
|
6. Other Current Liabilities
Other current liabilities consist of the following (in thousands):
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Accrued advertising expenses
|
|
$
|
83
|
|
|
$
|
451
|
|
Accrued insurance expenses
|
|
|
2,305
|
|
|
|
949
|
|
Accrued estimated workers' compensation expenses
|
|
|
2,148
|
|
|
|
2,338
|
|
Accrued medical contingency
|
|
|
666
|
|
|
|
680
|
|
Accrued legal contingency
|
|
|
3,023
|
|
|
|
2,000
|
|
Accrued sales tax payable
|
|
|
544
|
|
|
|
681
|
|
Accrued incentive compensation
|
|
|
1,112
|
|
|
|
—
|
|
Other accrued expenses
|
|
|
4,363
|
|
|
|
3,469
|
|
Unclaimed property
|
|
|
1,510
|
|
|
|
1,131
|
|
Other current liabilities
|
|
|
1,272
|
|
|
|
1,594
|
|
Total other current liabilities
|
|
$
|
17,026
|
|
|
$
|
13,293
|
|
7. Debt
The Company’s outstanding debt obligations are as follows (in thousands):
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2020
|
|
|
2019
|
|
Term Loans
|
|
$
|
49,479
|
|
|
$
|
69,545
|
|
Notes
|
|
|
49,504
|
|
|
|
61,132
|
|
Promissory notes
|
|
|
222
|
|
|
|
284
|
|
|
|
$
|
99,205
|
|
|
$
|
130,961
|
|
Less: unamortized debt issuance costs on Term Loans
|
|
|
(4,000
|
)
|
|
|
(5,115
|
)
|
Less: unamortized debt issuance costs on Notes
|
|
|
(1,516
|
)
|
|
|
(2,602
|
)
|
Total long-term debt
|
|
$
|
93,689
|
|
|
$
|
123,244
|
|
|
|
|
|
|
|
|
|
|
Short-term loans
|
|
|
1,172
|
|
|
|
3,612
|
|
Total outstanding debt
|
|
$
|
94,861
|
|
|
$
|
126,856
|
|
13
TABLE_CONTENTS
The following discussion includes a description of the Company’s outstanding debt at September 30, 2020 and December 31, 2019. Interest expense related to the Company’s outstanding debt totaled $2,117 and $2,775 for the three months ended September 30, 2020 and 2019, respectively, and $7,521 and $6,570 for the nine months ended September 30, 2020 and 2019, respectively. Interest expense includes interest on outstanding borrowings and amortization of debt issuance costs.
Amendments to Loan Agreements
On July 15, 2020, the Company entered into an amendment to the Credit Agreement and an amendment to the Convertible Notes Agreement (together, the “Amended Loan Agreements”), pursuant to which each of the Credit Agreement and the Convertible Notes Agreement was amended to provide that, upon the payment of $10,500 of the Term Loans under the Credit Agreement, the interest rates under the Amended Loan Agreements would be reduced by 200 basis points for a one-year period, so that the interest rate under the Credit Agreement will be 5.125% per annum and the interest rate under the Convertible Notes Agreement will be 4.0% per annum during such period, and the maturity dates under such agreements would be extended by one year to November 15, 2023. See Debt Facility and Notes below for definitions of certain capitalized terms included above and details on the payment of a portion of the Term Loans.
The Company evaluated the amendments in the Amended Loan Agreements under ASC 470-50, “Debt Modification and Extinguishment”, and concluded that the amendments did not meet the characteristics of debt extinguishments under ASC 470-50. Accordingly, the amendments were treated as a debt modification, and thus, no gain or loss was recorded. A new effective interest rate for each of the Term Loans and Notes that equates the revised cash flows to the carrying amount of the original debt is computed and applied prospectively.
Limited Waiver and Conversion Agreement
On May 1, 2020, the Company, Waitr Inc., Waitr Intermediate Holdings, LLC, a Delaware limited liability company and wholly-owned direct subsidiary of the Company (“Intermediate Holdings”), the lenders party to the Credit Agreement and Convertible Notes Agreement (the “Lenders”) and Luxor Capital Group, LP (“Luxor Capital”) entered into a Limited Waiver and Conversion Agreement (the “Waiver and Conversion Agreement”), pursuant to which the Lenders agreed to waive the requirement to prepay the Term Loans arising as a result of the May 2020 ATM Offering (as defined in Note 12 – Stockholders’ Equity). In consideration of the prepayment waiver, the Company agreed that, regardless of whether any shares of the Company’s common stock were actually sold in the May 2020 ATM Offering, (i) the Company would prepay a portion of the Term Loans in the amount of $12,500 on the date that was sixty days after the Effective Date (as defined in the Waiver and Conversion Agreement) and (ii) the lenders under the Notes would be permitted to convert a portion of the outstanding principal amount of the Notes in the amount of $12,500 into shares of the Company’s common stock at a conversion rate of 746.269 shares of the Company’s common stock per one thousand principal amount of the Notes (calculated based on the closing price of $1.34 per share of the Company’s common stock on Nasdaq on April 30, 2020, the date immediately preceding the date of the Waiver and Conversion Agreement), notwithstanding the conversion rate then in effect pursuant to the terms of the Notes. See Debt Facility and Notes below for definitions of certain capitalized terms included above and details on the payment of a portion of the Term Loans and conversion of Notes.
The Company evaluated the amendments in the Waiver and Conversion Agreement under ASC 470-50, “Debt Modification and Extinguishment”, and concluded that the amendments did not meet the characteristics of debt extinguishments under ASC 470-50. Accordingly, the amendments were treated as a debt modification, and thus, no gain or loss was recorded. A new effective interest rate that equated the revised cash flows to the carrying amount of the original debt was computed and applied prospectively through July 15, 2020, the effective date of the Amended Loan Agreements.
Debt Facility
In November 2018, Waitr Inc., a Delaware corporation and wholly-owned indirect subsidiary of the Company, as borrower, entered into the Credit and Guaranty Agreement (as amended or otherwise modified from time to time, the “Credit Agreement”) with Luxor Capital, as administrative agent and collateral agent, the various lenders party thereto, Intermediate Holdings, and certain subsidiaries of Waitr Inc. as guarantors. The Credit Agreement provided for a senior secured first priority term loan facility (the “Debt Facility”) to Waitr Inc. in the aggregate principal amount of $25,000 (the “Original Term Loans”). An amendment to the Credit Agreement in January 2019 provided an additional $42,080 under the Debt Facility (the “Additional Term Loans” and together with the Original Term Loans, the “Term Loans”), the proceeds of which were used to consummate the Bite Squad Merger. The Term Loans are guaranteed by certain subsidiaries of the Company.
On July 2, 2020, the Company made a payment of $12,500 on the Term Loans pursuant to the Waiver and Conversion Agreement, and on August 3, 2020, the Company made a payment of $10,500 on the Term Loans pursuant to the July 15, 2020 amendment to the Credit Agreement. Interest on borrowings under the Debt Facility accrued at a rate of 7.125% per annum from January 17, 2019 through August 3, 2020. The interest rate was reduced to 5.125% per annum on August 3, 2020, for a one-year period, in connection with the July 15, 2020 amendment to the Credit Agreement and related payment of the Term Loans. Interest is payable quarterly, in cash or, at the
14
TABLE_CONTENTS
election of the borrower, as a payment-in-kind. The quarterly interest payments due from September 30, 2019 through June 30, 2020 were paid in-kind and added to the aggregate principal balance. The aggregate principal amount of the Term Loans at September 30, 2020 totaled $49,479. The effective interest rate for borrowings on the Debt Facility, after considering the allocated discount, is approximately 9.49%.
The Credit Agreement includes a number of customary covenants that, among other things, limit or restrict the ability of each of Intermediate Holdings, Waitr Inc. and its subsidiaries to incur additional debt, incur liens on assets, engage in mergers or consolidations, dispose of assets, pay dividends or repurchase capital stock and repay certain junior indebtedness. The aforementioned restrictions are subject to certain exceptions including the ability to incur additional indebtedness, liens, dividends, and prepayments of junior indebtedness subject, in each case, to compliance with certain financial metrics and/or certain other conditions and a number of other traditional exceptions that grant Waitr Inc. continued flexibility to operate and develop its business. The Credit Agreement also includes customary affirmative covenants, representations and warranties and events of default. We believe that we were in compliance with all covenants under the Credit Agreement as of September 30, 2020.
In connection with the Debt Facility, the Company issued to Luxor Capital warrants which are currently exercisable for 399,726 shares of the Company’s common stock. See Note 12 – Stockholders’ Equity for additional details.
Notes
In November 2018, the Company entered into the Credit Agreement (as amended or otherwise modified from time to time, the “Convertible Notes Agreement”), pursuant to which the Company issued unsecured convertible promissory notes to Luxor Capital Partners, LP, Luxor Capital Partners Offshore Master Fund, LP, Luxor Wavefront, LP and Lugard Road Capital Master Fund, LP (the “Luxor Entities”) in the aggregate principal amount of $60,000 (the “Notes”).
The Notes originally had an interest rate of 1.0% per annum, paid quarterly in cash. Pursuant to an amendment to the Convertible Notes Agreement on May 21, 2019, the interest rate of the Notes was revised to 6.0%, and on August 3, 2020, the interest rate was revised to 4.0% per annum, for a one-year period, pursuant to the July 15, 2020 amendments to the Convertible Notes Agreement and Credit Agreement. Effective with the May 21, 2019 amendment to the Convertible Notes Agreement, the Company may elect to pay up to one-half of the dollar amount of an interest payment due in-kind. A portion of the quarterly interest payments due from June 30, 2019 through June 30, 2020 were paid in-kind and added to the aggregate principal balance. Pursuant to the Waiver and Conversion Agreement, Luxor converted $12,359 of the Notes into 9,222,978 shares of the Company’s common stock during the three months ended June 30, 2020 and $141 of the Notes into 105,384 shares of the Company’s common stock during the three months ended September 30, 2020. The aggregate principal amount of the Notes, after considering the impact of interest paid-in-kind and the conversions, totaled $49,504 as of September 30, 2020. The effective interest rate for borrowings on the Notes, after considering the allocated discount, is approximately 6.49%.
The Notes include customary anti-dilution protection, including broad-based weighted average adjustments for issuances of additional shares (down-round features). Upon maturity, the outstanding Notes (and any accrued but unpaid interest) will be repaid in cash or converted into shares of common stock, at the holder’s election. The Notes are convertible at the holder’s election into shares of the Company’s common stock at a rate of $12.51 per share.
The Company’s payment obligations on the Notes are not guaranteed. The Convertible Notes Agreement contains negative covenants, affirmative covenants, representations and warranties and events of default that are substantially similar to those that are set forth in the Credit Agreement and applicable to Waitr Inc. and Intermediate Holdings (except those that relate to collateral and related security interests, which are not contained in the Convertible Notes Agreement or otherwise applicable to the Notes). We believe that we were in compliance with all covenants under the Convertible Notes Agreement as of September 30, 2020.
Promissory Notes
In September 2019, the Company entered into an interest-free promissory note to fund a portion of an acquisition. The principal amount of the promissory note was initially $500, payable in 24 monthly installments, with payments expected to begin shortly after integration of the acquired assets onto the Company’s platform. The Company recorded the promissory note at its fair value of $452 and will impute interest over the life of the note using an interest rate of 10%, representing the estimated effective interest rate at which the Company could obtain financing. On February 13, 2020, the Company entered into an amendment to the asset purchase agreement, whereby the promissory note was amended to $600, payable in 30 monthly installments, commencing on March 1, 2020. The current portion of the promissory note of $191 is included in other current liabilities in the unaudited condensed consolidated balance sheet at September 30, 2020.
In October 2019, the Company entered into an interest-free promissory note to fund a portion of an additional acquisition. The principal amount of the promissory note is $100, payable in 24 monthly installments. The Company recorded the promissory note at its fair value of $90 and will impute interest over the life of the note using an interest rate of 10%, representing the estimated effective
15
TABLE_CONTENTS
interest rate at which the Company could obtain financing. The current portion of the promissory note of $42 is included in other current liabilities in the unaudited condensed consolidated balance sheet at September 30, 2020.
Short-Term Loans
In June 2019, the Company entered into a loan agreement with First Insurance Funding to finance a portion of its annual insurance premium obligation. The principal amount of the loan was $5,032, payable in monthly installments, until maturity. The loan matured on April 1, 2020 and carried an annual interest rate of 4.08%. On May 16, 2020, the Company entered into an additional loan agreement with First Insurance Funding for $362 in principal amount, payable in ten monthly installments until maturity on February 28, 2021. The loan carries an annual interest rate of 3.49% and had an outstanding principal balance at September 30, 2020 of $182.
In November 2019, the Company entered into a loan agreement with BankDirect Capital Finance to finance a portion of its annual directors and officers insurance premium obligation. The principal amount of the loan was $1,993, payable in monthly installments, until maturity. The loan matured on August 15, 2020 and carried an annual interest rate of 4.15%.
In June 2020, the Company entered into a loan agreement with IPFS Corporation to finance a portion of its annual general liability insurance premium obligation. The principal amount of the loan is $1,354, payable in monthly installments beginning July 1, 2020, until maturity on May 31, 2021. The loan carries an annual interest rate of 3.99% and had an outstanding principal balance at September 30, 2020 of $990.
8. Income Taxes
The Company provides for income taxes using an asset and liability approach under which deferred income taxes are provided for based upon enacted tax laws and rates applicable to periods in which the taxes become payable. The Company recorded income tax expense of $18 and $30 for the three months ended September 30, 2020 and 2019, respectively, and $52 and $60 for the nine months ended September 30, 2020 and 2019, respectively. The Company’s income tax expense is entirely related to taxes required on gross margins in Texas. A partial valuation allowance has been recorded as of September 30, 2020 and December 31, 2019 as the Company has historically generated net operating losses, and the Company did not consider future book income as a source of taxable income when assessing if a portion of the deferred tax assets is more likely than not to be realized.
On March 27, 2020, the Coronavirus Aid, Relief and Economic Security (“CARES”) Act was enacted and signed into law and GAAP requires recognition of the tax effects of new legislation during the reporting period that includes the enactment date. The CARES Act includes changes to the tax provisions that benefit business entities and makes certain technical corrections to the Tax Cuts and Jobs Act of 2017. The tax relief measures for businesses include a five-year net operating loss carryback, suspension of annual deduction limitation of 80% of taxable income from net operating losses generated in a tax year beginning after December 31, 2017, changes in the deductibility of interest, acceleration of alternative minimum tax credit refunds, payroll tax relief, and a technical correction to allow accelerated deductions for qualified improvement property. The CARES Act also provides other non-tax benefits to assist those impacted by the pandemic. The Company evaluated the impact of the CARES Act and determined that there was no significant impact to the income tax provision for the quarter.
As of September 30, 2020, the Company recognized $807 in employer payroll tax deferrals under the CARES Act, of which 50% will be paid in 2021 and 50% will be paid in 2022. These amounts are reflected in other non-current liabilities in the accompanying unaudited condensed consolidated balance sheet.
9. Correction of Prior Period Error
During the third quarter of 2020, the Company identified and corrected an error that affected previously issued consolidated financial statements. The error related to the understatement of an accrual for a workers’ compensation claim at December 31, 2018 (the “Medical Contingency”). The Company became liable for a claim due to the insolvency of a previous workers compensation insurer, Guarantee Insurance Company (“GIC”), and the subsequent determination by the Louisiana Insurance Guaranty Association, the agency created by the Louisiana insurance guaranty act to pay for claims of insolvent members (“LIGA”), that coverage was ineligible. During the third quarter of 2020, the Company discovered the error upon receipt of information from a third-party administrator regarding an increase in the estimated amount of loss exposure for the claim. Upon review of this information, management determined that the original estimate provided by this third-party administrator was not correct based on the information known at December 31, 2018 related to the severity of the Medical Contingency. As a result, the Company engaged a third-party actuary to assist in the calculation of the estimated loss exposure and determined that the accrued liability recorded at December 31, 2018 for the claim was understated by approximately $17,505, which resulted in additional expense for the year ended December 31, 2018 of $17,505.
The Company assessed the materiality of the error, both quantitatively and qualitatively, in accordance with the SEC’s Staff Accounting Bulletin No. 99, and concluded that the error was not material to any of its previously reported financial statements based upon qualitative aspects of the error. However, as the error was large quantitatively, the Company determined that the cumulative
16
TABLE_CONTENTS
correction of this error would have a material effect on the financial results for the three and nine months ended September 30, 2020. Accordingly, in order to present the impact of the updated estimated liability for the claim, previously issued financial statements have been revised and are presented “As Revised” in the tables below. The cumulative impact of the error correction on the Company’s retained earnings and stockholders’ equity as of December 31, 2019 was a reduction of approximately $17,505. Any further changes in the Medical Contingency going forward are related to payments made in connection with the Medical Contingency. Additionally, any changes in the assumptions, including life span and medical condition related to the Medical Contingency would be considered a change in estimate. No such changes occurred during the year ended December 31, 2019 or the three and nine months ended September 30, 2020.
The revised estimated loss exposure would have been reflected in other expense in the consolidated statement of operations for the year ended December 31, 2018. The estimated loss exposure would have been reflected in other expense due to the one-time nature of the expense that the Company does not consider to be an ongoing part of its operations. The understatement of the loss exposure in fiscal 2018 did not have an impact to the consolidated statement of operations for any quarterly or annual period in 2019 or any quarterly period in 2020. The long-term portion of the related liability is included in the unaudited condensed consolidated balance sheets as accrued medical contingency, with the current portion included in other current liabilities, for the affected years. The Company’s liability for workers’ compensation claims incurred and an estimate for claims incurred but not yet reported (“IBNR”), other than the accrued medical contingency, remains in the accrued workers compensation liability line on the unaudited condensed consolidated balance sheet, with the current portion included in other current liabilities.
A summary of the effects of the error correction on reported amounts as of and for the years ended December 31, 2018 and 2019, the three months ended March 31, 2020 and 2019 and the six months ended June 30, 2020 and 2019 is presented below. The information in the tables below represents income statement, balance sheet and cash flow statement line items affected by the revision. As shown in the tables below, there was no impact to net cash provided by (used in) operating activities in any quarterly or annual period in 2019 or any quarterly period in 2020.
Revised Annual Financial Statements:
Revised Consolidated Statement of Operations (in thousands)
|
|
Year Ended December 31, 2018
|
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
Other expenses
|
|
$
|
2
|
|
|
$
|
17,505
|
|
|
$
|
17,507
|
|
Net loss before income taxes
|
|
|
(34,738
|
)
|
|
|
(17,505
|
)
|
|
|
(52,243
|
)
|
Net loss
|
|
|
(34,311
|
)
|
|
|
(17,505
|
)
|
|
|
(51,816
|
)
|
Net loss per share - basic and diluted
|
|
$
|
(2.18
|
)
|
|
$
|
(1.11
|
)
|
|
$
|
(3.29
|
)
|
Revised Consolidated Cash Flow Statements (in thousands)
|
|
Year Ended December 31, 2019
|
|
|
Year Ended December 31, 2018
|
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(291,306
|
)
|
|
$
|
—
|
|
|
$
|
(291,306
|
)
|
|
$
|
(34,311
|
)
|
|
$
|
(17,505
|
)
|
|
$
|
(51,816
|
)
|
Changes in liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued medical contingency
|
|
|
—
|
|
|
|
(680
|
)
|
|
|
(680
|
)
|
|
|
—
|
|
|
|
17,883
|
|
|
|
17,883
|
|
Accrued workers' compensation liability
|
|
|
(446
|
)
|
|
|
285
|
|
|
|
(161
|
)
|
|
|
(342
|
)
|
|
|
(646
|
)
|
|
|
(988
|
)
|
Other current liabilities
|
|
|
(3,012
|
)
|
|
|
395
|
|
|
|
(2,617
|
)
|
|
|
4,213
|
|
|
|
268
|
|
|
|
4,481
|
|
Net cash used in operating activities
|
|
|
(73,477
|
)
|
|
|
—
|
|
|
|
(73,477
|
)
|
|
|
(15,842
|
)
|
|
|
—
|
|
|
|
(15,842
|
)
|
Revised Consolidated Balance Sheets (in thousands)
|
|
December 31, 2019
|
|
|
December 31, 2018
|
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
Other current liabilities
|
|
$
|
12,630
|
|
|
$
|
663
|
|
|
$
|
13,293
|
|
|
$
|
4,508
|
|
|
$
|
268
|
|
|
$
|
4,776
|
|
Total current liabilities
|
|
|
31,988
|
|
|
|
663
|
|
|
|
32,651
|
|
|
|
13,595
|
|
|
|
268
|
|
|
|
13,863
|
|
Accrued medical contingency - long term
|
|
|
—
|
|
|
|
17,203
|
|
|
|
17,203
|
|
|
|
—
|
|
|
|
17,883
|
|
|
|
17,883
|
|
Accrued workers' compensation liability - long term
|
|
|
463
|
|
|
|
(361
|
)
|
|
|
102
|
|
|
|
908
|
|
|
|
(646
|
)
|
|
|
262
|
|
Total liabilities
|
|
|
156,065
|
|
|
|
17,505
|
|
|
|
173,570
|
|
|
|
97,061
|
|
|
|
17,505
|
|
|
|
114,566
|
|
Accumulated deficit
|
|
|
(362,237
|
)
|
|
|
(17,505
|
)
|
|
|
(379,742
|
)
|
|
|
(70,931
|
)
|
|
|
(17,505
|
)
|
|
|
(88,436
|
)
|
Total stockholders' equity
|
|
|
22,908
|
|
|
|
(17,505
|
)
|
|
|
5,403
|
|
|
|
129,491
|
|
|
|
(17,505
|
)
|
|
|
111,986
|
|
17
TABLE_CONTENTS
Revised Interim Financial Statements:
Revised Consolidated Cash Flow Statements (unaudited) (in thousands)
|
|
Three Months Ended March 31, 2020
|
|
|
Three Months Ended March 31, 2019
|
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes in liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued medical contingency
|
|
$
|
—
|
|
|
$
|
(69
|
)
|
|
$
|
(69
|
)
|
|
$
|
—
|
|
|
$
|
(484
|
)
|
|
$
|
(484
|
)
|
Accrued workers' compensation liability
|
|
|
(69
|
)
|
|
|
71
|
|
|
|
2
|
|
|
|
(176
|
)
|
|
|
81
|
|
|
|
(95
|
)
|
Other current liabilities
|
|
|
(155
|
)
|
|
|
(2
|
)
|
|
|
(157
|
)
|
|
|
(2,093
|
)
|
|
|
403
|
|
|
|
(1,690
|
)
|
Net cash provided by (used in) operating activities
|
|
|
7,027
|
|
|
|
—
|
|
|
|
7,027
|
|
|
|
(12,687
|
)
|
|
|
—
|
|
|
|
(12,687
|
)
|
|
|
Six Months Ended June 30, 2020
|
|
|
Six Months Ended June 30, 2019
|
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes in liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued medical contingency
|
|
$
|
—
|
|
|
$
|
(112
|
)
|
|
$
|
(112
|
)
|
|
$
|
—
|
|
|
$
|
(545
|
)
|
|
$
|
(545
|
)
|
Accrued workers' compensation liability
|
|
|
(117
|
)
|
|
|
116
|
|
|
|
(1
|
)
|
|
|
(305
|
)
|
|
|
145
|
|
|
|
(160
|
)
|
Other current liabilities
|
|
|
1,650
|
|
|
|
(4
|
)
|
|
|
1,646
|
|
|
|
(2,441
|
)
|
|
|
400
|
|
|
|
(2,041
|
)
|
Net cash provided by (used in) operating activities
|
|
|
18,961
|
|
|
|
—
|
|
|
|
18,961
|
|
|
|
(34,351
|
)
|
|
|
—
|
|
|
|
(34,351
|
)
|
Revised Consolidated Balance Sheets (unaudited) (in thousands)
|
|
June 30, 2020
|
|
|
June 30, 2019
|
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
Other current liabilities
|
|
$
|
13,923
|
|
|
$
|
659
|
|
|
$
|
14,582
|
|
|
$
|
12,597
|
|
|
$
|
668
|
|
|
$
|
13,265
|
|
Total current liabilities
|
|
|
44,532
|
|
|
|
659
|
|
|
|
45,191
|
|
|
|
39,120
|
|
|
|
668
|
|
|
|
39,788
|
|
Accrued medical contingency - long term
|
|
|
—
|
|
|
|
17,091
|
|
|
|
17,091
|
|
|
|
—
|
|
|
|
17,338
|
|
|
|
17,338
|
|
Accrued workers' compensation liability - long term
|
|
|
346
|
|
|
|
(245
|
)
|
|
|
101
|
|
|
|
603
|
|
|
|
(501
|
)
|
|
|
102
|
|
Total liabilities
|
|
|
148,688
|
|
|
|
17,505
|
|
|
|
166,193
|
|
|
|
159,422
|
|
|
|
17,505
|
|
|
|
176,927
|
|
Accumulated deficit
|
|
|
(353,686
|
)
|
|
|
(17,505
|
)
|
|
|
(371,191
|
)
|
|
|
(120,532
|
)
|
|
|
(17,505
|
)
|
|
|
(138,037
|
)
|
Total stockholders' equity
|
|
|
66,692
|
|
|
|
(17,505
|
)
|
|
|
49,187
|
|
|
|
261,878
|
|
|
|
(17,505
|
)
|
|
|
244,373
|
|
|
|
March 31, 2020
|
|
|
March 31, 2019
|
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
|
As Reported
|
|
|
Adjustment
|
|
|
As Revised
|
|
Other current liabilities
|
|
$
|
12,125
|
|
|
$
|
661
|
|
|
$
|
12,786
|
|
|
$
|
12,933
|
|
|
$
|
671
|
|
|
$
|
13,604
|
|
Total current liabilities
|
|
|
31,368
|
|
|
|
661
|
|
|
|
32,029
|
|
|
|
34,308
|
|
|
|
671
|
|
|
|
34,979
|
|
Accrued medical contingency - long term
|
|
|
—
|
|
|
|
17,134
|
|
|
|
17,134
|
|
|
|
—
|
|
|
|
17,399
|
|
|
|
17,399
|
|
Accrued workers' compensation liability - long term
|
|
|
394
|
|
|
|
(290
|
)
|
|
|
104
|
|
|
|
733
|
|
|
|
(565
|
)
|
|
|
168
|
|
Total liabilities
|
|
|
157,795
|
|
|
|
17,505
|
|
|
|
175,300
|
|
|
|
156,214
|
|
|
|
17,505
|
|
|
|
173,719
|
|
Accumulated deficit
|
|
|
(364,339
|
)
|
|
|
(17,505
|
)
|
|
|
(381,844
|
)
|
|
|
(95,680
|
)
|
|
|
(17,505
|
)
|
|
|
(113,185
|
)
|
Total stockholders' equity
|
|
|
27,673
|
|
|
|
(17,505
|
)
|
|
|
10,168
|
|
|
|
235,866
|
|
|
|
(17,505
|
)
|
|
|
218,361
|
|
10. Commitments and Contingencies
Sales Tax Contingent Liability
The Company received an assessment from the State of Mississippi Department of Revenue (the “MDR”), in connection with their audit of Waitr for the period from April 2017 through January 2019, claiming additional sales taxes due. The assessment related to the MDR’s assertion that sales taxes are due on the delivery fees charged to end user customers when an order is placed on the Waitr Platform. The total asserted claim, plus estimated accrued interest and penalties, amounted to approximately $339 at June 30, 2020. The Company disagreed with the MDR’s assertion. Pursuant to a legislative ruling on this matter which went into effect on July 1, 2020, delivery fee revenue was determined to be a non-taxable transaction, resulting in the Company no longer having exposure for this claim. Accordingly, the assessed taxes are no longer due and the MDR abated all penalties related to such assessment.
Medical Contingency Claim
In November 2017, GIC, the Company’s former workers’ compensation insurer, was ordered into receivership for purposes of liquidation by the Second Judicial Circuit Court in Leon County, Florida. At the time of the court order, GIC was administering the
18
TABLE_CONTENTS
Company’s outstanding workers’ compensation claims. Upon entering receivership, the guaranty associations of the states where GIC operated began reviewing outstanding claims administered by GIC for continued claim coverage eligibility based on guaranty associations’ eligibility criteria. LIGA determined that the Company’s enterprise value exceeded the $25,000 eligibility threshold for claims coverage. As such, LIGA assessed one of the Company’s outstanding claims as ineligible for coverage.
During the third quarter of 2020, the Company discovered an error upon the receipt of information from a third-party administrator regarding the estimated amount of loss exposure for a certain workers’ compensation claim (the Medical Contingency claim), and determined the original estimate provided by the third-party administrator was in error based on the information known at December 31, 2018. The Company engaged a third-party actuary to assist in the calculation of the estimated loss exposure and determined that the expense and accrued liability recorded at December 31, 2018 for the Medical Contingency claim were understated by approximately $17,505. In order to present the impact of the estimated liability for the claim, the Company’s previously issued financial statements have been revised. See Note 9 – Correction of Prior Period Error for additional details. The additional expense associated with the estimated loss exposure impacted 2018. As of September 30, 2020 and December 31, 2019, the long-term portion of the estimated Medical Contingency claim totaled $16,839 and $17,203, respectively, and is included in the unaudited condensed consolidated balance sheet as accrued medical contingency. The current portion of the Medical Contingency totaled $666 and $680 as of September 30, 2020 and December 31, 2019, respectively, and is included in other current liabilities.
Workers Compensation and Auto Policy Claims
We establish a liability under our workers’ compensation and auto insurance policies for claims incurred and an estimate for IBNR claims. As of September 30, 2020 and December 31, 2019, $4,294 and $2,377, respectively, in outstanding workers’ compensation and auto policy claims are included in the unaudited condensed consolidated balance sheet. The short term portions of the liability for our workers’ compensation and auto insurance claims are included in other current liabilities.
Legal Matters
In July 2016, Waiter.com, Inc. filed a lawsuit against Waitr Inc. in the United States District Court for the Western District of Louisiana, alleging trademark infringement based on Waitr’s use of the “Waitr” trademark and logo, Civil Action No.: 2:16-CV-01041. Plaintiff seeks injunctive relief and damages relating to Waitr’s use of the “Waitr” name and logo. During the third quarter of 2020, the trial date was rescheduled to June 2021, and in September 2020, the court ruled on various motions, certain of which ruled against defenses the Company had advanced. Waitr believes that the damages case lacks merit and that it has a defense to the infringement claims alleged. Waitr continues to vigorously defend the suit.
In February 2019, the Company was named a defendant in a lawsuit titled Halley, et al vs. Waitr Holdings Inc. filed in the United States District Court for the Eastern District of Louisiana on behalf of plaintiff and similarly situated drivers alleging violations of the Fair Labor Standards Act (“FLSA”), and in March 2019, the Company was named a defendant in a lawsuit titled Montgomery v. Waitr Holdings Inc. filed in the United States District Court for the Eastern District of Louisiana on behalf of plaintiff and similarly situated drivers, alleging violations of FLSA and Louisiana Wage Payment Act. The parties to the Halley and Montgomery matters jointly filed with the court a motion for preliminary approval of a settlement agreement whereby the Halley and Montgomery plaintiffs, on behalf of themselves and similarly situated drivers, would dismiss the lawsuits against the Company in consideration for the Company issuing up to 1,556,420 shares of Waitr common stock to be allocated to participating class members pursuant to a formula set forth in the settlement agreement. On April 28, 2020, the court granted the motion and held a fairness hearing on August 19, 2020. The court approved a final judgment pursuant to which the Company would pay 873,720 shares of common stock to settle the lawsuits. In connection with the settlement, the Company accrued a $3,023 liability which is included in other current liabilities in the unaudited condensed consolidated balance sheet at September 30, 2020. Included in the unaudited condensed consolidated statement of operations in other expenses for the three and nine months ended September 30, 2020 is an expense of $1,023 related to the settlement. The liability was settled upon the issuance of 873,720 shares of the Company’s common stock to the participating class members on October 7, 2020.
In April 2019, the Company was named as a defendant in a class action complaint filed by certain current and former restaurant partners, captioned Bobby’s Country Cookin’, et al v. Waitr, which is currently pending in the United States District Court for the Western District of Louisiana. Plaintiffs allege, among other things, claims for breach of contract, violation of the duty of good faith and fair dealing, and unjust enrichment, and seek recovery on behalf of themselves and two separate classes. Based on the current class definitions, as many as 10,000 restaurant partners could be members of the two separate classes that the representative plaintiffs are attempting to certify. The hearing for class certification is currently scheduled for July 2021. Waitr believes that the underlying allegations and claims lack merit, and that the classes, as pled, are incapable of certification. Waitr intends to vigorously defend the suit.
In September 2019, Christopher Meaux, David Pringle, Jeff Yurecko, Tilman J. Fertitta, Richard Handler, Waitr Holdings Inc. f/k/a Landcadia Holdings Inc., Jefferies Financial Group, Inc. and Jefferies, LLC were named as defendants in a putative class action lawsuit entitled Walter Welch, Individually and on Behalf of all Others Similarly Situated vs. Christopher Meaux, David Pringle, Jeff Yurecko, Tilman J. Fertitta, Richard Handler, Waitr Holdings Inc. f/k/a Landcadia Holdings Inc., Jefferies Financial Group, Inc. and Jefferies, LLC. The case was filed in the Western District of Louisiana, Lake Charles Division. In the lawsuit, the plaintiff asserts
19
TABLE_CONTENTS
putative class action claims alleging, inter alia, that various defendants made false and misleading statements in securities filings, engaged in fraud, and violated accounting and securities rules. A similar putative class action lawsuit, entitled Kelly Bates, Individually and on Behalf of all Others Similarly Situated vs. Christopher Meaux, David Pringle, Jeff Yurecko, Tilman J. Fertitta, Richard Handler, Waitr Holdings Inc. f/k/a Landcadia Holdings Inc., Jefferies Financial Group, Inc. and Jefferies, LLC, was filed in that same court in November 2019. These two cases were recently consolidated, and an amended complaint was filed in October 2020. Waitr believes that this lawsuit lacks merit and that it has strong defenses to all of the claims alleged. Waitr intends to vigorously defend this lawsuit.
In addition to the lawsuits described above, Waitr is involved in other litigation arising from the normal course of business activities, including, without limitation, labor and employment claims, lawsuits and claims involving personal injuries, physical damage and workers’ compensation benefits suffered as a result of alleged conduct involving its employees, independent contractor drivers, and third-party negligence. Although Waitr believes that it maintains insurance that generally covers liability for potential damages in many of these matters, insurance coverage is not guaranteed, often these claims are met with denial of coverage positions by the carriers, and there are limits to insurance coverage; accordingly, we could suffer material losses as a result of these claims or the denial of coverage for such claims.
11. Stock-Based Awards and Cash-Based Awards
Stock-Based Awards
On June 16, 2020, the Company’s stockholders approved the Waitr Holdings Inc. Amended and Restated 2018 Omnibus Incentive Plan (the “Amended 2018 Plan”), which is an amendment and restatement of the Waitr Holdings Inc. 2018 Omnibus Incentive Plan (the “2018 Incentive Plan”). The Amended 2018 Plan permits the granting of awards in the form of incentive stock options, non-qualified stock options, stock appreciation rights, restricted stock, restricted stock units, performance-based awards, and other stock-based or cash-based awards. The Amended 2018 Plan was adopted principally to serve as a successor plan to the 2018 Incentive Plan, and to increase the number of shares of common stock reserved for issuance of equity-based awards by 13,500,000 shares, which is in addition to the share reserve amount that remained available under the 2018 Incentive Plan prior to the adoption of the Amended 2018 Plan. Additionally, the Amended 2018 Plan extended the provision for automatic increases in shares reserved for issuance on January 1st of each year to January 1, 2030. The automatic increases each year are equal to 5% of the total number of outstanding shares of the Company’s common stock on December 31st of the preceding calendar year. As of September 30, 2020, there were 7,438,443 shares of common stock available for future grants pursuant to the Amended 2018 Plan. The Company also has outstanding equity awards under the 2014 Stock Plan (as amended in 2017, the “Amended 2014 Plan”).
Total compensation expense related to awards under the Company’s incentive plans was $1,728 and $2,195 for the three months ended September 30, 2020 and 2019, respectively, and $3,178 and $6,747 for the nine months ended September 30, 2020 and 2019, respectively.
Stock Options
On January 3, 2020, 9,572,397 stock options were granted under the 2018 Incentive Plan to the Company’s chief executive officer (the “Grimstad Option”), with an aggregate grant date fair value of $2,297. The exercise price of the options is $0.37, and the options will vest 50% on each of the first two anniversaries of the grant date. The options have a five-year exercise term. The fair value of the Grimstad Option was estimated as of the grant date using an option-pricing model with the following assumptions:
Weighted-average fair value at grant
|
|
$
|
0.24
|
|
Risk free interest rate
|
|
1.54%
|
|
Expected volatility
|
|
100.6%
|
|
Expected option life (years)
|
|
|
3.25
|
|
There were no grants of stock options other than the Grimstad Option during the nine months ended September 30, 2020. As of September 30, 2020, there were 9,767,136 stock options outstanding under the Company’s incentive plans. Unrecognized compensation cost related to unvested stock options as of September 30, 2020 totaled $1,743, with a weighted average remaining vesting period of approximately 1.26 years.
20
TABLE_CONTENTS
Performance-Based Restricted Stock Units (“RSUs”)
On April 23, 2020, 3,134,325 performance based RSUs were granted under the 2018 Incentive Plan to Mr. Grimstad, with an aggregate grant date fair value of $3,542 (the “Grimstad RSU Grant”). The Grimstad RSU Grant vests in full in the event of a change of control, as defined in Mr. Grimstad’s employment agreement with the Company (the “Employment Agreement”), subject to his continuous employment with the Company through the date of a change of control; provided, however, that the Grimstad RSU Grant shall fully vest in the event that Mr. Grimstad terminates his employment for good reason or he is terminated by the Company for reason other than misconduct. No stock-based compensation expense will be recognized for the Grimstad RSU Grant until such time that is probable that the performance goal will be achieved, or at the time that Mr. Grimstad terminates his employment for good reason or he is terminated by the Company for reason other than misconduct, should either occur.
Restricted Stock Units with Time-Based Vesting
During the nine months ended September 30, 2020, 4,227,501 RSUs with time-based vesting were granted pursuant to the Company’s 2018 Incentive Plan and the Amended 2018 Plan (with an aggregate grant fair value of value of $9,613), of which 1,400,000 RSUs were granted to non-employee directors vesting upon the earlier of June 30, 2021 and the date of the 2021 annual meeting of the Company’s stockholders and 2,827,501 RSUs were granted to employees and consultants vesting generally between one to three years of the date of grant. The RSU grants vest in various manners in accordance with the terms specified in the applicable RSU award agreements, all of which accelerate and vest upon a change of control. Unrecognized compensation cost related to unvested time-based RSUs as of September 30, 2020 totaled $8,433, with a weighted average remaining vesting period of approximately 1.75 years. For the nine months ended September 30, 2020, the activity for time-based RSUs is as follows:
|
|
Number of
Shares
|
|
|
Weighted
Average
Grant Date
Fair Value
|
|
Nonvested at December 31, 2019
|
|
|
3,182,639
|
|
|
$
|
1.42
|
|
Granted
|
|
|
4,227,501
|
|
|
|
2.27
|
|
Shares vested
|
|
|
(588,054
|
)
|
|
|
1.94
|
|
Forfeitures
|
|
|
(1,903,984
|
)
|
|
|
1.45
|
|
Nonvested at September 30, 2020
|
|
|
4,918,102
|
|
|
$
|
2.08
|
|
Cash-Based Awards
Performance Bonus Agreement
On April 23, 2020, the Company entered into a performance bonus agreement with Mr. Grimstad. Pursuant to the bonus agreement, upon the occurrence of a change of control in which the holders of the Company’s common stock receive per share consideration that is equal to or greater than $2.00, subject to adjustment in accordance with the 2018 Incentive Plan, the Company shall pay Mr. Grimstad an amount equal to $5,000 (the “Bonus”). In order to receive the Bonus, Mr. Grimstad must remain continuously employed with the Company through the date of the change of control; provided, however, that in the event Mr. Grimstad terminates his employment for good reason or the Company terminates his employment other than for misconduct, Mr. Grimstad will be entitled to receive the Bonus provided the change of control occurs on or before January 3, 2022. Compensation expense related to the bonus agreement will not be recognized until such time that is probable that the performance goal will be achieved.
12. Stockholders’ Equity
Common Stock
At September 30, 2020 and December 31, 2019, there were 249,000,000 shares of common stock authorized and 110,120,621 and 76,579,175 shares of common stock issued and outstanding, respectively, with a par value of $0.0001. The Company did not hold any shares as treasury shares as of September 30, 2020 or December 31, 2019. The Company’s common stockholders are entitled to one vote per share.
Preferred Stock
At September 30, 2020 and December 31, 2019, the Company was authorized to issue 1,000,000 shares of preferred stock ($0.0001 par value per share). There were no issued or outstanding preferred shares as of September 30, 2020 or December 31, 2019.
21
TABLE_CONTENTS
At-the-Market Offerings
On March 20, 2020, the Company entered into an open market sale agreement with respect to an at-the-market offering program (the “ATM Program”) under which the Company could offer and sell, from time to time at its sole discretion, shares of its common stock, having an aggregate offering price of up to $25,000 through Jefferies LLC as its sales agent. The issuance and sale of shares by the Company under the agreement were made pursuant to the Company’s effective registration statement on Form S-3 which was filed on April 4, 2019. From March 20, 2020 through May 1, 2020, the Company sold 14,262,305 shares of common stock under the ATM Program at an average price of $1.28 per share, for gross proceeds of $18,314. Net proceeds, after deducting sales commissions, totaled $18,024. The ATM Program was terminated on May 1, 2020 when the Company entered into the May 2020 ATM Program (defined below), with approximately $6,686 out of the aggregate $25,000 remaining unsold.
On May 1, 2020, the Company entered into an amendment and restatement of the open market sale agreement associated with its March 20, 2020 ATM Program, with respect to an at-the-market offering program (the “May 2020 ATM Program”), under which the Company could offer and sell, from time to time at its sole discretion, shares of its common stock, having an aggregate offering price of up to $30,000 through Jefferies LLC as its sales agent. The issuance and sale of shares by the Company under the amended and restated agreement were made pursuant to the Company’s registration statement on Form S-3 described above. From May 1, 2020 through July 10, 2020, the Company sold 9,436,415 shares of common stock under the May 2020 ATM Program at an average price of $3.18 per share, for gross proceeds of $30,000. Net proceeds, after deducting sales commissions, totaled $29,550.
Conversion of Notes
During the nine months ended September 30, 2020, in connection with the Waiver and Conversion Agreement, Luxor converted $12,500 of the Notes into 9,328,362 shares of the Company’s common stock (see Note 7 – Debt).
Warrants
In connection with the Debt Facility, the Company issued to Luxor Capital warrants (the “Debt Warrants”) which are currently exercisable for 399,726 shares of the Company’s common stock with an exercise price of $12.51 per share. The Debt Warrants expire on November 15, 2022 and include customary anti-dilution protection, including broad-based weighted average adjustments for issuances of additional shares (down-round features). Additionally, holders of the Debt Warrants have customary registration rights with respect to the shares underlying the Debt Warrants.
13. Fair Value Measurements
At September 30, 2020 and December 31, 2019, the Company had an outstanding medical contingency claim which is measured at fair value on a recurring basis (see Note 10 – Commitments and Contingencies). The long-term portion of the liability for such claim is included in the unaudited condensed consolidated balance sheets under accrued medical contingency, with the short-term portion included within other current liabilities. The medical contingency claim is measured at fair value using a method that incorporates life-expectancy assumptions, along with projected annual medical costs for each future year, adjusted for inflation. An average annual inflation rate of 3.5% was used in the development of the actuarial estimate for medical costs, based on historical medical cost inflation trends as published by the U.S. Bureau of Labor Statistics. Additionally, the measurement includes factors to derive a probability-weighted average of future payments in order to reflect variations from the life-expectancy assumptions, using CDC National Vital Statistics Reports as a tool in the analysis. Projected cash flows are discounted using an interest rate consistent with the U.S. 30-year treasury yield curve rates.
The medical contingency claim analysis represents a Level 3 measurement as it was based on unobservable inputs reflecting the Company’s assumptions used in developing the fair value estimate. The inputs used in the measurement, particularly life expectancy and projected medical costs, are sensitive inputs to the measurement and changes to either could result in significantly higher or lower fair value measurements. The Company utilized historical transactional data regarding the claim, along with projections for future comprehensive medical care costs. These inputs required significant judgments and estimates at the time of the valuation.
The following table presents the Company’s liabilities measured at fair value on a recurring basis as of September 30, 2020 and December 31, 2019 (in thousands):
|
|
As of September 30, 2020
|
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued medical contingency
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
(17,505
|
)
|
|
$
|
(17,505
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2019
|
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued medical contingency
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
(17,883
|
)
|
|
$
|
(17,883
|
)
|
22
TABLE_CONTENTS
The Company had no assets required to be measured at fair value on a recurring basis at September 30, 2020 or December 31, 2019. During the nine months ended September 30, 2020, the Company did not make any transfers between the levels of the fair value hierarchy. Adjustments to the accrued medical contingency are recognized in other expense on the condensed consolidated statement of operations.
The following table presents a reconciliation of liabilities classified as Level 3 financial instruments for the periods indicated (in thousands):
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30, 2020
|
|
|
September 30, 2019
|
|
|
September 30, 2020
|
|
|
September 30, 2019
|
|
Balance, beginning of the period
|
|
$
|
17,767
|
|
|
$
|
18,023
|
|
|
$
|
17,883
|
|
|
$
|
18,167
|
|
Increases/additions
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Reductions/settlements
|
|
|
(262
|
)
|
|
|
(61
|
)
|
|
|
(378
|
)
|
|
|
(205
|
)
|
Balance, end of the period
|
|
$
|
17,505
|
|
|
$
|
17,962
|
|
|
$
|
17,505
|
|
|
$
|
17,962
|
|
In addition to assets and liabilities that are recorded at fair value on a recurring basis, the Company is required to record certain assets and liabilities at fair value on a non-recurring basis. The Company generally applies fair value concepts in recording assets and liabilities acquired in acquisitions (see Note 3 – Business Combinations).
14. Earnings (Loss) Per Share Attributable to Common Stockholders
Basic earnings (loss) per share is computed by dividing net income (loss) attributable to common stockholders by the weighted-average number of common shares outstanding during the period, without consideration for common stock equivalents. Diluted earnings (loss) per share is computed by dividing net income (loss) attributable to common stockholders by the weighted-average number of common shares outstanding during the period and potentially dilutive common stock equivalents, including stock options, restricted stock awards, restricted stock units and warrants, except in cases where the effect of the common stock equivalent would be antidilutive.
During 2019, the Company calculated basic and diluted earnings (loss) per share using the two-class method. Participating securities during 2019 consisted of restricted stock awards which contained rights to receive non-forfeitable dividends. The Company had net losses during the three and nine months ended September 30, 2019, and accordingly, pursuant to the guidance under ASC 260, a portion of the net losses was not allocated to such securities under the two-class method. During 2020, there were no remaining outstanding restricted stock awards and no other securities classified as participating securities.
The calculation of basic and diluted earnings (loss) per share attributable to common stockholders for the three and nine months ended September 30, 2020 and 2019 is as follows (in thousands, except share and per share data):
|
|
Three Months Ended September 30,
|
|
|
Nine Months Ended September 30,
|
|
|
|
2020
|
|
|
2019
|
|
|
2020
|
|
|
2019
|
|
Basic Earnings per Share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
4,644
|
|
|
$
|
(220,104
|
)
|
|
$
|
13,195
|
|
|
$
|
(269,705
|
)
|
Gain on debt extinguishment recorded as a capital
contribution
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,897
|
|
Net income (loss) attributable to common stockholders - basic
|
|
$
|
4,644
|
|
|
$
|
(220,104
|
)
|
|
$
|
13,195
|
|
|
$
|
(267,808
|
)
|
Weighted average number of shares outstanding - basic
|
|
|
109,181,847
|
|
|
|
76,145,317
|
|
|
|
93,763,069
|
|
|
|
71,071,777
|
|
Basic earnings (loss) per common share
|
|
$
|
0.04
|
|
|
$
|
(2.89
|
)
|
|
$
|
0.14
|
|
|
$
|
(3.77
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted Earnings per Share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
4,644
|
|
|
|
(220,104
|
)
|
|
$
|
13,195
|
|
|
$
|
(269,705
|
)
|
Gain on debt extinguishment recorded as a capital
contribution
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,897
|
|
Net income (loss) attributable to common stockholders - diluted
|
|
$
|
4,644
|
|
|
$
|
(220,104
|
)
|
|
$
|
13,195
|
|
|
$
|
(267,808
|
)
|
Weighted average number of shares outstanding – diluted
|
|
|
123,785,750
|
|
|
|
76,145,317
|
|
|
|
102,519,454
|
|
|
|
71,071,777
|
|
Diluted earnings (loss) per common share
|
|
$
|
0.04
|
|
|
$
|
(2.89
|
)
|
|
$
|
0.13
|
|
|
$
|
(3.77
|
)
|
The Company has outstanding Notes which are convertible into shares of the Company’s common stock. See Note 7 – Debt for additional details on the Notes.
23
TABLE_CONTENTS
The following table includes potentially dilutive common stock equivalents as of September 30, 2020 and 2019. The Company generated a net loss attributable to the Company’s common stockholders for the three and nine months ended September 30, 2019. Accordingly, the effect of dilutive securities is not considered in the loss per share for such periods because their effect would be antidilutive on the net loss. For the three and nine months ended September 30, 2020, 70,045 stock options were considered anti-dilutive because the exercise price of the options exceeded the average market price of the Company’s common stock for such periods, and as a result, the effect of these options in not considered in the diluted earnings per share for such periods. At September 30, 2020, antidilutive restricted stock units of 34,974 were excluded from the computation of diluted earnings per share based on the treasury stock method.
|
|
As of September 30,
|
|
|
|
2020
|
|
|
2019
|
|
Potentially dilutive securities:
|
|
|
|
|
|
|
|
Stock Options
|
|
|
9,767,136
|
|
|
|
664,679
|
|
Restricted Stock Units
|
|
|
8,052,427
|
|
|
|
2,956,528
|
|
Warrants (1)
|
|
|
399,726
|
|
|
|
399,726
|
|
Potentially dilutive securities at period end
|
|
|
18,219,289
|
|
|
|
4,020,933
|
|
|
(1)
|
Includes the Debt Warrants as of September 30, 2020 and 2019. See Note 12 – Stockholders’ Equity for additional details.
|
15. Related-Party Transactions
In November 2018, the Company entered into the Credit Agreement, and in January 2019, in connection with the Bite Squad Merger, the Company entered into an amendment to the Credit Agreement, with Luxor Capital and an amendment to the Convertible Notes Agreement with the Luxor Entities. On each of May 21, 2019 and July 15, 2020, the Company entered into amendments to the Credit Agreement with Luxor Capital and amendments to the Convertible Notes Agreement with the Luxor Entities. Additionally, on May 1, 2020, the Company entered into the Waiver and Conversion Agreement with respect to the Credit Agreement and Convertible Notes Agreement. See Note 7 – Debt for additional details regarding these transactions. Jonathan Green, a board member of the Company, is a partner at Luxor Capital.
During the period from January 1, 2020 through July 31, 2020, the Company reimbursed C Grimstad and Associates, a company owned by our chief executive officer (“CGA”), $262 for certain of its consultants that provided consulting services to the Company during this period. As of July 1, 2020, CGA is no longer providing consulting services and CGA did not mark-up or profit from these reimbursement transactions.
During the nine months ended September 30, 2020, Jefferies Financial Group (“JFG”) beneficially owned more than 5% of our common stock at certain points of time. In conjunction with our ATM offering during this nine month period, JFG served as our sales agent for which we paid $740.
24
TABLE_CONTENTS