UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
FORM 10-K
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(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2022
or
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ____________ to ____________
Commission file number: 001-39119
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Leafly Holdings, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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84-2266022 |
(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
113 Cherry Street, PMB 88154 Seattle, Washington |
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98104-2205 |
(Address of principal executive offices) |
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(Zip Code) |
(206) 455-9504
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock, $0.0001 Par Value |
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LFLY |
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The Nasdaq Stock Market LLC |
Warrants, exercisable for shares of common stock at an exercise price of $11.50 per share |
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LFLYW |
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The Nasdaq Stock Market LLC |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined by Rule 405 of the Securities Act. Yes ☐ No ☑
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes ☐ No ☑
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☑ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files.) Yes ☑ No ☐
Indicate by check mark whether registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. Yes ☐ No ☑
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☑
The aggregate market value of the Common Stock (based on its closing price per share on such date) held by non-affiliates on the last business day of the registrant’s most recently completed second fiscal quarter (June 30, 2022) was approximately $165.8 million.
Registrant had 40,777,410 shares of Common Stock ($0.0001 par value) outstanding as of March 20, 2023.
INDEX
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Page |
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Item 1. |
1 |
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Item 1A. |
11 |
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Item 1B. |
57 |
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Item 2. |
58 |
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Item 3. |
58 |
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Item 4. |
58 |
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Item 5. |
59 |
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Item 6. |
59 |
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Item 7. |
Management’s Discussion and Analysis of Financial Condition and Results of Operations |
60 |
Item 7A. |
71 |
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Item 8. |
72 |
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74 |
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75 |
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76 |
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78 |
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79 |
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Item 9. |
Changes in and Disagreements With Accountants on Accounting and Financial Disclosure |
109 |
Item 9A. |
109 |
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Item 9B. |
110 |
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Item 9C. |
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections |
110 |
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Item 10. |
111 |
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Item 11. |
114 |
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Item 12. |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
128 |
Item 13. |
Certain Relationships and Related Transactions, and Director Independence |
129 |
Item 14. |
132 |
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Item 15. |
134 |
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Item 16. |
137 |
PART I
Forward-Looking Statements
This Annual Report contains a number of forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may appear throughout this Annual Report, including the following sections: “Business” (Part I, Item 1), “Risk Factors” (Part I, Item 1A), “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (Part II, Item 7), and “Quantitative and Qualitative Disclosures About Market Risk” (Part II, Item 7A). Words, and variations of words, such as “may,” “expect,” “anticipate,” “contemplate,” “believe,” “estimate,” “intend,” “project,” “budget,” “forecast,” “anticipate,” “plan,” “may,” “will,” “could,” “should,” “predict,” “potential,” and “continue” and similar expressions are intended to identify our forward-looking statements. You should read statements that contain these words carefully because they:
You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Annual Report.
All forward-looking statements included herein are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. Except to the extent required by applicable laws and regulations, Leafly undertakes no obligations to update these forward-looking statements to reflect events or circumstances after the date of this Annual Report or to reflect the occurrence of unanticipated events.
There may be events in the future that Leafly is not able to predict accurately or over which it has no control. The sections in this Annual Report entitled “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the other cautionary language discussed in this Annual Report provide examples of risks, uncertainties and events that may cause actual results to differ materially from the expectations described by Leafly in such forward-looking statements.
Item 1. BUSINESS
Mission
Leafly’s mission is to help people discover cannabis. We endeavor to serve as the world’s most trusted destination to discover and shop for legal cannabis. The company was founded in 2010 with the objective to demystify cannabis, a product that lived in the shadows through decades of prohibition. Tens of millions of unique visitors access Leafly each year to learn more about legal cannabis, discover what products are right for them, and to shop with regulation-compliant local businesses. Through helping people navigate their cannabis journey, Leafly helps millions of consumers discover the benefits of cannabis.
Business Description
Leafly began as a platform to provide consumers with trusted cannabis information. Since then, Leafly has evolved into a content-first, community-driven, multi-sided marketplace that connects consumers to cannabis brands and licensed retailers. We offer cannabis retailers and brands subscription-based marketplace listings that provide our broad-based cannabis audience with information, reviews, menus, and ordering and delivery options through legal retailers. Our audience — which averaged 8 million monthly active users (“MAUs”) in 2022 — chooses Leafly for our unique, original content and data.
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Our Markets
As of December 31, 2022, 39 U.S. states and the District of Columbia have legalized cannabis for medical use, of which 21 states and the District of Columbia have further legalized cannabis for adult-use. In 2013, Canada legalized the commercial production and sale of medical cannabis, and in 2018 it legalized the commercial production and sale of adult-use cannabis. Several dozen other countries, including Germany, Australia, Mexico and Jamaica, permit cannabis use in some form. Leafly generates revenue in nearly all U.S. states where cannabis is legal for medical and/or adult-use and across Canada. As a content-led marketplace, we have an audience in all 50 states and almost every country where consumers have an interest in cannabis and are able to access our information platform.
Support for cannabis legalization in the U.S. remains strong, with recent polls from Gallup showing 68% support for legalizing cannabis across the country. The support is bipartisan, as evidenced by the States Reform Act by Republican members of Congress, the House's approval of the Marijuana Opportunity and Reinvestment Act, the introduction of the Cannabis Administration and Opportunity Act by Senate Majority Leader Chuck Schumer, and the passage of the Medical Marijuana and Cannabidiol Research Expansion Act after receiving bipartisan support. At the state level, efforts to end prohibition continue to make progress, with New Jersey being the latest to prepare for the launch of adult-use sales, in addition to recent license issuances expanding the medical market in the state.
Leafly has demonstrated an ability to attract and grow an audience in jurisdictions prior to any form of legalization. We do this by leveraging our extensive content library and establishing brand affinity. Building an active ecosystem with consumers prior to medical or adult-use legalization is a competitive advantage. Consumers consult our strains database and news before legalization, as access to cannabis education and information is generally not restricted, even where cannabis is prohibited. Our high-quality, high search engine optimization, or “SEO,” ranking content library therefore attracts an audience and helps increase Leafly’s brand profile across consumers. Leafly’s platform is broadly available throughout North America, with an audience that reaches beyond North America. The functionality we can provide, ranging from providing content to a robust three-sided marketplace, within each jurisdiction, depends on the state of legalization. The services we provide in any given jurisdiction adhere to the relevant governing regulations, which may allow or restrict online order reservations on third party platforms like Leafly.
Projected Growth of the Cannabis Market
The consistent growth of the U.S. legal cannabis industry in recent years is expected to continue, with Whitney Economics projecting that the industry is projected to double between 2020 and 2025, and the Pew Research Center reporting that a majority of U.S. adults now support having legal access to medical and/or adult-use cannabis.
Despite these growth expectations, the regulated cannabis market is still nascent and fragmented, with significant challenges facing both consumers seeking to understand cannabis, and the retailers and brands seeking to grow while managing regulatory burdens.
Leafly's Consumers and Suppliers and How We Reach Them
Consumers
Leafly attracted on average 8.0 million MAUs to its platform in 2022. While Leafly primarily targets a North American audience, consumers around the world consult Leafly for education and information about cannabis and where and what to buy from licensed retailers and brands. Prevalence of cannabis consumption across consumers has increased in the last 20 years as an increasing number of states and countries have legalized cannabis for medical and/or adult-use.
Consumers can research cannabis and identify the strains and products that may be right for their needs on Leafly's website. They learn about different form factors and effects, find deals and read reviews, all of which help build confidence in their shopping decisions. We provide consumers with information about the latest strains and products and, more importantly, where they can order those items, from licensed retailers. Our platform also provides a destination where individuals can interact with an engaged community to help navigate the complex world of cannabis and to make an informed and
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personalized purchasing decision. Prior to legalization, consumers are already utilizing our industry-leading strain database and reading our cannabis news coverage. When legalization arrives in a particular jurisdiction, we publish news and information about new laws and regulations to help prime consumers for shopping in their new local market.
Consumers access our content, paths towards discovery, and online order reservation tools through the Leafly website and iOS and Android mobile applications. Consumers find their way to the Leafly website primarily through organic search, using search engines like Google, Yahoo!, Bing and DuckDuckGo. Our history of creating useful content has resulted in Leafly search results ranking higher than other cannabis websites for key cannabis search terms. Consumers visit our “Learn” or “Cannabis 101” sections to learn the basics of cannabis science and products; “News” to learn about the latest developments in legalization and regulations; “Strains” to access our strains database; “Products” to access our catalog of cannabis brands and products across multiple categories; and “Dispensaries” to find listings of retailers and their menus nearest to the consumer’s location. Leafly also gathers structured feedback from consumers in the form of reviews, where consumers share their observations and experiences with a particular strain or product.
To attract consumers to our platform, we leverage multiple business-to-consumer (“B2C”) marketing initiatives, including content marketing, channel and event marketing, and public relations to drive cost-effective consumer engagement. Prior to Q3 2021, we focused on generating consumer interest through our owned channels or earned media. We believe that future deployment of capital towards paid customer acquisition will allow us to grow our visitor and customer base more effectively than organic growth alone.
Retailers and Brands
Retailers are the licensed storefronts and delivery services that sell cannabis products to consumers. Brands are the licensed producers of cannabis products or accessories that are made available for sale to consumers. We refer to retailers and brands collectively as “suppliers” on our platform and they are the purveyors of cannabis products that consumers discover on our platform while they search for the right cannabis products that fit their needs. Suppliers participate on the Leafly platform to reach Leafly's engaged cannabis consumer audience and they comprise the paying customers on our platform today.
As of December 31, 2022, we had over 11,700 retail listings on our platform, of which over 5,000 were paid. We believe the greater the number of retail listings and menu items, the more likely it is a consumer will find their desired product or strain. As of December 31, 2022, we had over 9,800 brand listings on our platform, of which an insignificant portion were paid.
Our marketing efforts to attract suppliers include a variety of strategies designed to acquire both retail and brands subscribers. We are working to attract the remaining licensed retailers not already on our platform. We are also using marketing strategies to activate more brands across our platform. Leveraging data insights, technology tools and personalized interaction via events and direct email, we seek to craft messages that resonate for sales and product adoption. Our business-to-business (“B2B”) marketing is transitioning from a primarily inbound lead generation approach to also include proactive account-based marketing designed to reach brands and licensed retailers in prioritized geographies.
Leafly's Products and Services
Products and Services for Consumers - Content and Shopping Services
We are a content-first marketplace that seeks to educate and inform consumers about cannabis. Our visitors, also referred to as consumers, in addition to consuming our content, may also create and submit additional content, expanding our overall library. User-generated content can include new strain information and additional reviews, and, once submitted, our subject matter experts may review, validate and add to these submissions. With each new piece of content from our visitors, our content library grows richer and more valuable for all future visitors to our platform.
We also generate additional content on our platform in the form of retailer listings, which support our online ordering experience. Retailers purchase monthly retailer subscriptions to provide a business listing on our site, where they can maintain basic business information, including address, phone number, and business hours. Listings also allow retailers to upload their menus manually or through an existing integration we have with point-of-sale (“POS”) providers, custom API integrations
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with retailers, and integrations with menu enablement providers. Menus provide a list of products that are available through the retailer as well as those product listings that are order enabled.
Brand listings, introduced in June 2021, are also a source of content, through which brand customers provide information about their products, which are searchable and viewable by Leafly consumers. Brands list their products on Leafly so they can provide pertinent product details to consumers, such as strain, cannabinoid, and terpene information, as well as post product imagery. Through catalog control, which launched in the fall of 2021, brands are able to control how their products appear across retailer menus on the Leafly platform, creating a consistent look and feel for their product(s).
Consumers on the Leafly platform can reserve items on retailer menus for pick-up or delivery, where either is permitted under applicable law. Once consumers place a reservation, the Leafly platform communicates the online order reservation to the applicable retailer who is then responsible for fulfillment. Our platform also allows for retailers to communicate with consumers. For example, consumers receive “order received,” “order being processed” and “order ready for pick-up” communications from the applicable retailer, so they can track in real-time the status of their order.
Consumers access our content and tools for free across the Leafly platform. All our revenues today are generated from our paying retailer and brand partners. Leafly neither sells (nor fulfills purchases of) cannabis products, nor does Leafly process payments for cannabis transactions across its platform. Consumers do not purchase cannabis products using our platform, and all confirmation of product availability, final order acceptance, order fulfillment, and processing of payments is handled directly between the consumer and the retailer.
Products and Services for Retailers
Leafly provides retailers with subscription-based offerings and advertising tools to attract our audience to their menus and ultimately, convert that audience into a community of shoppers. We also provide a suite of online tools which allow retailers to engage and communicate with consumers they acquire on our platform, including a portfolio of easy-to-use Software as a Service (“SaaS”)-based tools that allow the retailers to update their menus on the Leafly platform, create deals and promotions for consumers, manage their Leafly order reservation operations, integrate with selected POS systems, and view dashboards and analytics to help them make sales and merchandising decisions. Finally, we provide competitive market insights to retailers, which help them understand product and sales trends in their local market, track and monitor their performance across the Leafly platform, and gain insights on how to better compete to acquire new consumers via the Leafly platform.
We offer retailers two different tiers of subscriptions on our platform, standard and pro. We also offer a no-cost package that includes retailer informational listings, including store name and address, contact information, opening hours and customer reviews. Our paid solutions provide enhanced business listings, POS integrations, online reservation services, data insights, and advertising. Increasing the number of paid retailers with menus on our platform is critical to give consumers access to a greater supply of cannabis retailers, which creates a more compelling shopping experience.
The primary difference between standard and pro subscriptions is the ability for pro subscribers to participate in our advertising and add-on activations, including featured listings, display ads, promoted deal offerings, sponsored content, and sponsored event services. For example, on our dispensary finder, we offer platinum placements. These performance ad units typically generate greater consumer activity and engagement with the advertising retailer. In competitive local markets, those marketplace ad units can generate additional revenue for Leafly, as retailers compete to acquire new shoppers and order reservations via the Leafly platform. Retailers may be willing to pay higher rates and compete for shoppers on our platform, as Leafly shoppers exhibit valuable shopping behaviors. The ability to price performance advertising units based on market demand makes our business model dynamic and further empowers retailers to make prudent marketing choices based on their desired volume of consumer engagement.
Revenue from our retail partners accounted for approximately 77.6% and 78.1% of our revenue for the years ended December 31, 2022 and 2021, respectively.
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Products and Services for Brands
Brands have historically relied on our digital advertising solutions, such as banner ads, branded content, and email campaigns, to engage with the Leafly audience across our platform. However, with the re-introduction of our brands subscription offering in the first half of 2021, in addition to traditional digital advertising products that we continue to sell, we now offer a subscription-based product which allows brands to create a product listing on Leafly and pay to participate in advertising and add-on activations to promote their products to shoppers on our platform. We offer brands tools for campaign creation, tracking, and targeting and audience segmentation of customers so they can offer products and promotions that are native to the consumer shopping experience on Leafly.
Revenue from our brand partners accounted for approximately 22.4% and 21.9% of our revenue for the years ended December 31, 2022 and 2021, respectively.
Competition and Growth Drivers
Leafly is a three-sided marketplace connecting consumers, retailers and brands who come together on our platform to participate in our efficient, networked marketplace. Participants on Leafly — whether consumer, retailer or brand — contribute rich content, power menus, drive order reservations and, ultimately, increase the velocity of our flywheel. Connecting these constituents with Leafly order reservation tools has resulted in a dynamic marketplace that drives significant value to our suppliers.
We compete with WM Technologies, Inc. (“Weedmaps”) in providing a marketplace where consumers search for products and place order reservations for those products with participating storefront and delivery retailers. However, with our content-first strategy, we are able to build demand (consumers) on our platform in advance of establishing the marketplace. This differentiates us from Weedmaps, which is a transaction-oriented marketplace and, thus, dependent on a legalization trigger to establish a foothold in any given market.
We also compete with e-commerce enablement providers that target the cannabis sector, including Dutchie and Jane Technologies (“Jane”). Providers like Dutchie and Jane provide licensed retailers with embedded menus and e-commerce tools (similar to Leafly’s embedded menu solutions) that allow for retailers to offer e-commerce and order reservations directly on retailers’ websites. Dutchie and Jane also offer consumer marketplaces, but those offerings have limited consumer traffic and engagement as compared with Leafly’s marketplace. In February 2021, Leafly entered into a strategic partnership with Jane to provide streamlined menu management for retailers by integrating Jane's product catalog and business tools with Leafly's consumer marketplace. This integration offers retailers time-saving, resource-efficient tools for online menu management, as well as a larger reach to consumers and customers.
Leafly’s marketplace competes for its share of a large and growing audience. Leafly seeks to offer a differentiated experience for every visitor, powered by educational resources, broad selection, data and science. We believe the breadth of verified information, news and selection establishes trust between Leafly and its audience, creating a competitive environment that favors Leafly. We believe the significant audience and content library we have built up over a decade cannot be replicated easily.
In order to drive the continued growth of our business, we see a number of clear strategies and growth drivers in the immediate to mid-term.
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Increased Penetration of Local Markets
Because of the highly fragmented nature of state cannabis regulations, cannabis is an inherently local business. Each state has its own rules regarding who, what and how cannabis products can be produced and sold. Leafly has an established local market strategy that is designed to capitalize on the inherently local nature of this market. We focus on establishing and scaling our marketplace on a market-by-market basis. We work to secure the right amount of supply (retailers and brands) so we can match them with the demand (consumers) on our platform. Failure to achieve the right balance between suppliers and consumers can result in a suboptimal shopping experience, where fewer suppliers mean reduced selection and price options for consumers. To achieve healthy marketplace dynamics in specific markets, we may lower the price of our subscription packages to attract retailers onto our platform. We believe on-boarding suppliers onto our platform is of critical importance and will benefit us in the long run. We believe that by improving matching at the local level we can increase the volume of order reservations placed on our platform, thereby driving greater gross merchandise value and return on spend for our participating retailers. We have the ability to recreate this process in most new markets we enter.
Historically and today, our sales efforts to attract suppliers have been primarily focused on processing inbound leads. Many cannabis brands and retailers want to list their businesses on Leafly as soon as they are ready to begin operations. Starting in the Fall of 2021, we began expanding our sales team and later reorganized teams into local market teams, focused on outbound lead generation by local market in addition to inbound. Reflecting a reduction in force implemented in the fourth quarter of 2022, as of December 31, 2022, we employed 34 individuals focused on selling, account management and customer success activities targeting retailers and 15 individuals focused on selling and implementing brand sales.
With the addition of a new Chief Commercial Officer in October 2022, we believe Leafly can expand upon its success in local markets and recreate optimal dynamics to drive our marketplace in new and emerging markets.
Advertising Platform Enhancements
Performance-based advertising products offered to retailers embed dynamism in Leafly’s business model, as described in the section titled “Products and Services – Retailers” and “Products and Services – Brands” above. Currently, those ad units are priced and offered by our sales teams. By creating more ad inventory and investing in technology to introduce bidding tools, Leafly is able to more dynamically price those advertising units based on market demand. We believe market-based pricing, and greater automation in selling those ad units, present opportunities for revenue growth in 2023 and beyond.
Consumer Personalization and Improved Matching
In addition to iterating on our offerings for suppliers, we believe that investment in consumer discovery and personalization will provide our consumers with a further differentiated and immersive experience. We expect this will result in converting more Leafly visitors into shoppers. Today, we leverage our content (e.g., strains database, consumer reviews, retailer menus, brand product listings) and intellectual property along with search data and consumer trends to drive recommendations and personalization for our visitors. We continue to iterate on our personalization engines and, through such improvements, we believe we can better match consumers with their preferred strains and products. We believe finding the right product is critical, and we believe consumers will value personalized recommendations as they refine individual preferences. Through improved matching, we believe we can increase the number of order reservations and the number of items within each order reservation and shopper retention. In doing so, Leafly will generate increased return on investment for our suppliers and for ourselves.
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New Market Development
Our long-term growth depends on our ability to successfully develop an online marketplace within each local economy, whether within North America or outside. Once a new market opens with some form of legalized cannabis use, it may take years for that market to become efficient. This requires a robust supply chain, an appropriate density of dispensaries, and enough variety across brands and form factors to power consumer engagement. Our business depends on each market achieving a critical mass of consumers and suppliers, which will drive meaningful ROI to our advertising partners. We believe achieving these elements will accelerate our revenue model. However, it is our strategy to build an engaged audience in certain new markets prior to those markets reaching maturity. As a result, we may continue to generate losses in new markets for an extended period, and different markets can be expected to grow at different rates and generate varying levels of revenue, which we cannot predict with accuracy.
Data Opportunities
As the industry matures, we will expand our offering of e-commerce tools and, by association, data products. With one of the largest audiences in cannabis, we identify customer trends and opportunities at the local market level. Leafly has amassed significant and unique visitor data on browsing and purchasing trends since its inception in 2010. Our internal data shows us that online cannabis shoppers are relatively higher dollar spenders than in-store shoppers, and we believe this type of consumer will be of interest for advertisers in cannabis-related and adjacent industries. With that data, we expect to increase the efficiency of our advertisers' spend by allowing them to reach a specific audience based on the characteristics of their choosing. We view the ability to offer this data and insight as a valuable potential revenue stream.
Concentration of Markets and Customers
For the year ended December 31, 2022, Leafly derived approximately 18%, 12% and 10% of its revenue from customers in Arizona, California and Oregon, respectively. No other state comprised 10% or more of Leafly’s revenue. We have a diversified set of customers; no single customer accounted for 10% or more of our revenue for the year ended December 31, 2022.
Seasonality
We may experience seasonality in our business, which we believe has moderate impacts on our overall revenue. In certain years, we've seen seasonal fluctuations that coincide with either federal holidays, generally in the fourth quarter, or industry holidays and events, generally in the spring. Our industry and business history is limited and therefore we can't be certain that these are known trends or that other trends may develop.
Intellectual Property
Our brands and intellectual property are valuable assets that are important to our business. In our efforts to safeguard our trademarks, domain names, inventions, copyrights, trade secrets, and other intellectual property rights, we rely on a combination of federal, state, common law and international rights in the jurisdictions in which we operate.
We have an ongoing trademark registration program pursuant to which we file to register our core brands in select jurisdictions to the extent we determine they are appropriate and cost-effective. We consider our LEAFLY trademark to be among our most valuable brand assets and have filed or registered this mark in various jurisdictions, including the United States. Federal, state, and/or local laws may limit or define the nature of permitted goods and services for which we can seek registration.
We hold issued US Patents and have filed and maintained foreign and US patent applications to protect our software, algorithms, and technology interface.
We hold registered and unregistered copyrights, including a registered copyright for our retailer educational program and unregistered copyright in and to aspects of some of our software code, our site content, and our API.
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We also rely on non-disclosure agreements, invention assignment agreements, intellectual property assignment agreements, or license agreements with employees, independent contractors, consumers, software providers and other third parties, which protect and limit access to and use of our proprietary intellectual property.
We believe our intellectual property rights are a crucial component of, and competitive differentiator for, our business.
Circumstances outside our control could pose a threat to our intellectual property rights. For more information, see the section entitled “Risk Factors — Risks Related to Our Intellectual Property.”
People Operations and Human Capital Resources
Reflecting a reduction in force implemented in the fourth quarter of 2022, as of December 31, 2022, Leafly had 204 employees. We categorize our company into three teams: sales and marketing, product development, and general and administration. Within those three categories we had approximately 104, 63 and 37 employees, respectively. Of these employees, 194 were located in the U.S. and 10 were located in Canada.
The opportunity to build and scale the leading cannabis discovery marketplace has attracted, and we believe will continue to attract, top talent across all departments. Our position as a leading cannabis platform in a growing and dynamic market helps us attract high caliber employees who are skilled and also passionate about our mission. We have invested in our talent acquisition resources to find, attract and retain diverse and skilled talent across North America. There are no organized labor unions that represent our employees and we are not subject to any collective bargaining agreements.
Government Regulation of the Leafly Business
Leafly is not currently required to obtain a license for the provision of its products and services to its clients in the cannabis industry. However, Leafly may be subject, directly or indirectly, to rules or regulations governing the provision of such products or services, and the costs of compliance with such rules or regulations may be substantial. As discussed further below, those jurisdictions which have legalized cannabis for medical or adult-use have frequently adopted a complex licensing and regulatory regime. Entities engaged in the growing, processing, sale, transportation, or delivery of cannabis products are subject to rigorous licensing requirements, including initial licensing and regular licensing renewals, and on-going regulatory burdens. We require suppliers to provide proof of valid corporate existence at the time we initially onboard them, or, if we understand that state law requires a separate cannabis license, to submit a valid, unexpired state-issued license number, and we require contractual representations and warranties from our suppliers that they are complying with state law. However, we do not routinely validate whether that license number remains valid during the term of our suppliers’ use of our services and accordingly we generally do not, and cannot, ensure that our suppliers will conduct their business in a manner compliant with regulations or licensing requirements. The costs that licensing and regulation impose on Leafly’s suppliers may indirectly affect Leafly’s operations by increasing the costs of operations for our suppliers, decreasing their profitability or resulting in regulatory and even criminal actions if they are non-compliant, and in each case reducing their ability to pay for part or all of Leafly’s services, by causing them to go out of business, or by discouraging potential clients to enter the market.
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Regulatory restrictions on our suppliers also may restrict the extent to, or manner in, which they can use our services. In many jurisdictions, licensed cannabis businesses are subject to laws and regulations that restrict the manner in which they can advertise. For example, licensees generally are prohibited from advertising to those under the legal age of cannabis consumption in that jurisdiction. Licensees in many jurisdictions are required to include disclaimers in advertisements. Depending on the jurisdiction, licensees may be prohibited from depicting cannabis or cannabis products in advertising, making health or therapeutic claims about cannabis or cannabis products, or encouraging over-consumption of cannabis, among others. For example, licensees in Michigan may not advertise themselves as “dispensaries,” licensees in Illinois may not include in advertisements any images of a cannabis leaf or bud, and licensees in Oregon may only use advertising that targets cell phones (e.g., hyper-local marketing) if the advertising is within an app the user has installed, the user has confirmed they are of legal age, and the app provides an opt-out feature. These restrictions indirectly affect Leafly by restricting the manner in which its clients can advertise on the Leafly website or Leafly app. In some jurisdictions, licensees may be prohibited from using third-party platforms (like Leafly) for ordering, preventing those licensees from using Leafly’s reservation and ordering services, which are part of our paid subscription service. Jurisdictions change these laws and regulations, sometimes frequently, which may affect Leafly in ways we cannot predict.
Some jurisdictions have considered imposing licensing or regulatory requirements directly on online service providers servicing the cannabis industry, such as Leafly. For example, in 2019, the California legislature considered but ultimately rejected AB1417, a bill that would have imposed requirements on websites dedicated to promoting cannabis products. Other states may seek to impose such restrictions. Challenging such restrictions or complying with such restrictions may cause us to incur substantial costs.
We have not been a defendant in a criminal action, nor have we been the subject of a civil or regulatory enforcement proceeding, prosecuted by any governmental authority based on our provision of products and solutions to the cannabis industry.
Effect of existing or probable governmental regulations on the business
Our capacity for continued growth and ability to achieve and maintain profitability depends in part on our ability to operate and compete effectively in different domestic and international markets. Each market has unique regulatory dynamics and we have little influence over regulators and the regulations they ultimately enact. These include laws and regulations that can directly or indirectly affect our ability to operate, the number of retailers allowed to operate, and our costs associated with onboarding new suppliers. In addition, each market is subject to distinct competitive and operational dynamics. These include our ability to offer more attractive advertising offerings than alternative options, which affects our sales, results of operations and key business metrics. As a result, we may experience fluctuations in our results of operations due to the changing dynamics in the domestic and international markets where we operate.
Rest of World
In most other countries outside of the U.S. and Canada, cannabis is not legal for adult use. A number of countries have decriminalized cannabis or permit the use of medical cannabis, including Germany, Australia, Mexico, and Jamaica and we expect additional countries to do so. However, it may take years for foreign countries to open for the sale of cannabis-related goods and services. In the meantime, while we do not yet regard these countries as viable markets for our products or services, our content is available to viewers in those countries.
Business Combination with Merida Merger Corp. I
On February 4, 2022, Leafly Holdings, Inc. (“Legacy Leafly”) consummated a business combination with Merida Merger Corp. I, Merida Merger Sub, Inc. (“Merger Sub I”), and Merida Merger Sub II, LLC (“Merger Sub II”), whereby (a) Merger Sub I merged with and into Legacy Leafly (the “Initial Merger”), with Legacy Leafly being the surviving entity (the “Initial Surviving Company”) of the Initial Merger and Legacy Leafly’s shareholders receiving shares of common stock of Merida in exchange for their equity securities of Legacy Leafly, and (b) immediately following the Initial Merger and as part of the
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same overall transaction as the Initial Merger, the Initial Surviving Company merged with and into Merger Sub II (the “Final Merger” and, together with the Initial Merger, the “Mergers”), with Merger Sub II being the surviving entity of the Final Merger. As a result of the Mergers, Legacy Leafly became a wholly owned subsidiary of Merida and was renamed Leafly, LLC, Merida was renamed Leafly Holdings, Inc. (“New Leafly”), and the securityholders of Legacy Leafly became securityholders of Merida. We sometimes refer to the Mergers and the other transactions contemplated by the merger agreement and the other agreements being entered into by Merida and Legacy Leafly in connection with the Mergers as the “Business Combination” and to Merida following the Business Combination as “New Leafly.”
Information about our Executive Officers
Our executive officers as of the date of this Annual Report were as follows:
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Business Experience During the Past Five Years and Other Information |
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Yoko Miyashita |
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Chief Executive Officer of Leafly since August 2020; prior thereto, Leafly General Counsel since 2019; prior thereto, several roles, including Senior Vice President and General Counsel, at Getty Images from July 2005 to April 2019.; prior thereto, Associate at Perkins Coie LLP from November 2001 to June 2005. Ms. Miyashita holds a J.D. from the University of Washington School of Law and a B.A. from the University of California, Berkeley. |
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Suresh Krishnaswamy |
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Chief Financial Officer since September 2021; prior thereto, Principal at NextLevel Business Consulting since 2019; prior thereto, Chief Financial Officer at Drift, a renewable energy marketplace, from 2018 to 2019; prior thereto, Treasury and Pricing Strategy Consultant at Remitly, an international payments company in 2017; prior thereto, Principal at DataSense Analytics, a software and services company from 2015 to 2017. Mr. Krishnaswamy holds a BS in Computer Science from the University of Pennsylvania and an MS in Computer Science from the University of Texas. |
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Available information
Our website address is www.leafly.com. Information contained on, or that can be accessed through, our website does not constitute part of this Annual Report. The U.S. Securities and Exchange Commission (“SEC”) maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC at www.sec.gov. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to reports filed or furnished pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) are also available free of charge on our investor relations website as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
We webcast our earnings calls and certain events we participate in or host with members of the investment community on our investor relations website at investor.leafly.com. Additionally, we provide notifications of news or announcements regarding our financial performance, including SEC filings, investor events, and press and earnings releases, as part of our investor relations website. The contents of these websites are not intended to be incorporated by reference into this report or in any other report or document we file.
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Item 1A. RISK FACTORS
You should carefully consider the following risk factors, as well as all of the other information contained in this report, including our consolidated financial statements and the notes thereto, and other filings we make with the SEC before deciding to invest in our common stock. The occurrence of any of the following risks could materially and adversely affect our business, prospects, financial condition, operating results and cash flow. In such case, the trading price of our common stock could decline and you could lose some or all of your investment.
RISK FACTOR SUMMARY
The following is a summary of the principal risks that could materially adversely affect our business operations, industry, and financial results. You should read this summary together with the more detailed risk factors that immediately follows this summary.
Risks Relating to Our Business and Industry
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Additional Risks Related to the Cannabis Industry
Risks Related to Our Intellectual Property
Public Company and Financial Reporting Risks
Risks Relating to Ownership of our Common Stock
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Risks Relating to Our Business and Industry
We have a relatively short operating history in a rapidly evolving industry, which makes it difficult to evaluate our future prospects and may increase the risk that we will not be successful.
We have a relatively short operating history in an evolving industry that may not develop as we anticipate, if at all. Both our short operating history and the pace of dramatic change in the cannabis industry makes it difficult to assess our future prospects, and you should evaluate our business in light of the risks and difficulties we may encounter as the industry continues to evolve. These risks and difficulties include our ability to, among other things:
If the demand for our services, including our advertising solutions, does not develop as we expect, or if we fail to address the needs of this demand, our business will be harmed. We may not be able to successfully address these risks and difficulties or others, including those described elsewhere in these risk factors. Failure to adequately address these risks and difficulties could harm our business and cause our operating results to suffer.
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The legal cannabis industry and market are relatively new, and this industry and market may not continue to exist or develop as anticipated, or we may ultimately be unable to succeed in this new industry and market.
We are operating our business in a relatively new cannabis industry and market, and our success depends in part on broader consumer adoption of the legal cannabis market. In addition, despite broad public support for cannabis legalization in the United States, the growth of our business is dependent in part upon the continued authorization of cannabis in new jurisdictions, as well as the absence of legislation narrowing, limiting or repealing existing laws legalizing and regulating cannabis. Any one of these factors could slow or halt the legalization or consumer adoption of cannabis, which would negatively impact our ability to grow our business.
In addition to being subject to general business risks applicable to a business involving a technology product in a regulated industry, we need to continue to build brand awareness for the Leafly platform and make significant investments in our business strategy, including by introducing new services and platform features into the markets in which we operate, expanding our international presence and continuing our regulatory compliance efforts. These activities may not promote our services and platform features as effectively as intended, or at all, and we expect that our competitors will undertake similar investments to compete with us for market share.
Furthermore, consolidation of the cannabis markets could reduce the size of our potential supplier base and give remaining suppliers greater bargaining or purchasing power. This may in turn erode the prices we are able to charge for our services and result in decreased margins. Competitive conditions, consumer preferences, supplier requirements and spending patterns in this new industry and market are relatively unknown and may have unique circumstances that differ from other existing industries and markets. Those conditions may cause our efforts to further our business, including promoting our brand awareness, offering high quality services, and attracting and retaining suppliers and consumers, to be unsuccessful or to have undesired consequences that may materially adversely affect our business, financial condition and results of operations. As a result, we may not be successful in our efforts to attract and retain customers or traffic, or to develop and commercialize new products, or these activities may require significantly more resources than anticipated in order to be successful.
Because our business is dependent, in part, upon continued market acceptance of cannabis by consumers, any negative trends could adversely affect our business operations.
We are dependent on public support, continued market acceptance and the proliferation of consumers in the state-level and Canadian legal cannabis markets. While we believe that the market and opportunities in the space will continue to grow, we cannot predict the future growth rate or size of the market. Any downturns in, or negative outlooks on, the cannabis industry may adversely affect our business and financial condition.
Expansion of our business is dependent on the continued and future legalization of cannabis.
Expansion of our business is, in part, dependent upon continued and future legislative authorization, including by voter initiatives and referenda, of cannabis in various jurisdictions worldwide. Any number of factors could slow, halt, or even reverse progress in this area. For example, some ballot measures in 2020 were delayed due to the COVID-19 pandemic. Further, progress for the industry, while encouraging, is not assured. While there may be ample public support for legislative action in a particular jurisdiction, numerous factors could impact the legislative process, including lobbying efforts by opposing stakeholders as well as legislators’ disagreements about how to legalize cannabis as well as the interpretation, implementation, and enforcement of applicable laws or regulations. Any one of these factors could slow or halt the legalization of cannabis, which would negatively impact our ability to expand our business. Additionally, the expansion of our business also depends on jurisdictions in which cannabis is currently legalized not narrowing, limiting or repealing existing laws legalizing and regulating cannabis, or altering the regulatory landscape in a way that diminishes the viability of cannabis businesses in those jurisdictions. This result may negatively impact the viability and attractiveness of our service offerings going forward. If such challenges are successful in any jurisdictions that have legalized or are in the process of legalizing cannabis, our ability to expand our business would be negatively impacted.
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We expect to face increased competition in the market.
The market for information, advertising and online ordering regarding cannabis products and suppliers is intensely competitive, characterized by low barriers to entry and is rapidly changing. With the emergence of new technologies and market entrants, competition is likely to intensify in the future. We face competition from media companies, including but not limited to direct competitors such as High Times, Wikileaf and Allbud; offline media companies and service providers; newspaper, television, and other media companies; advertising platforms such as Weedmaps, but also general two-sided markets such as Yelp and internet search engines such as Google; online marketplaces such as Weedmaps, Dutchie, Eaze, and iHeartJane; e-commerce platforms like Amazon and Shopify; various business services providers such as Springbig, Meadow, Leaflink, Growflow and Metrc; and traditional customer relationship management service providers such as SAP and Salesforce. Our competitors may enjoy competitive advantages, such as greater name recognition, longer operating histories, greater market share, large existing user bases, more favorable regulatory regimes due to disparities in the geographic distribution of customer bases, location of operations or other factors, and greater financial, technical and other resources. These companies may use these advantages to offer services similar to ours at a lower price, develop different services and platform features to compete with our current solutions and respond more quickly and effectively than we do to new or changing opportunities, technologies, standards or supplier requirements. In particular, if restrictions on cannabis advertising ease, major internet companies, such as Alphabet and Meta, may begin developing and marketing online advertising offerings directly to cannabis businesses, and many of our advertising partners and potential advertising partners may choose to purchase online advertising solutions from these competitors and may reduce their purchases of our advertising solutions. As the cannabis industry matures and the market increases, new competitors, business models and solutions are likely to emerge. We also compete with these companies for the attention of contributors and consumers, and may experience decreases in both if our competitors offer more compelling environments.
Moreover, as the legalization of cannabis continues, cannabis businesses could experience consolidation as existing cannabis businesses seek to obtain greater market share, greater access to funding and resources and purchasing power and new entrants seek to establish a significant market presence. Consolidation of the cannabis markets could reduce the size of our potential supplier base and give remaining suppliers greater bargaining or purchasing power. This may in turn erode the prices for our advertising solutions and result in decreased margins. Consolidation could particularly affect smaller cannabis businesses, with whom we have historically conducted the majority of our business. Further, heightened competition between cannabis businesses could ultimately have a negative impact on the viability of individual market participants, which could reduce or eliminate their ability to purchase our services, including our advertising solutions. In addition, as macroeconomic conditions impact our customers, the overall size of the market in which we compete may grow more slowly or contract.
For all of these reasons, we may be unable to maintain or grow the number of people who use our website and mobile application and the number of businesses that use our advertising solutions. Accordingly, we may face pressure to reduce the price of our advertising solutions, in which case our business, financial condition, and results of operations would be harmed.
If users do not value the quality and reliability of the reviews and other content that we display on our platform, they may stop or reduce the use of our services, which could adversely impact the growth of our business.
Our success depends in part on the quality of the reviews and other content that we display on our platform, both original content as well as third-party submissions, including whether they are helpful, up-to-date, unbiased, relevant, unique and reliable. If users do not value the content on our platform, they may stop or reduce the use of our services, and traffic to our website and on our mobile application would decline. If our user traffic declines, our suppliers may stop or reduce their use of services or advertising solutions offered on our platform. As a result, our business could be negatively affected if we fail to obtain high quality content from our contributors, or if the content we display is perceived to be unhelpful, out-of-date, biased, irrelevant, not unique or unreliable. We must therefore ensure that our services and platform features are attractive to users, and invite them to contribute. In addition, users who contribute content to our platform may provide content to our competitors. If they do so, the value of our content may decline relative to other available services and platform features, and our business may be harmed.
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While we attempt to filter or remove content that may be offensive, biased, unreliable or otherwise unhelpful, we cannot guarantee the effectiveness or adequacy of these efforts. If we fail to filter or remove a significant amount of content that is offensive, biased, unreliable, or otherwise unhelpful, or if we mistakenly filter or remove a significant amount of valuable content, our reputation and brand may be harmed, users may stop using our products, and our business, financial condition, and results of operations could be adversely affected.
Because we recognize most of the revenue from our advertising products over the term of an agreement, a significant downturn in our business may not be immediately reflected in our results of operations.
We recognize revenue from sales of our advertising products over the terms of the applicable agreements, which are generally auto-renewing month-to-month agreements. As a result, a decline in new or renewed agreements in any one quarter may significantly impact our revenue, which may not be immediately reflected in our financial results. In addition, we may be unable to adjust our fixed costs in response to reduced revenue.
We expect a number of factors to cause our operating results to fluctuate on a quarterly and annual basis, which may make it difficult to predict our future performance.
Our operating results could vary significantly from quarter to quarter and year to year because of a variety of factors, many of which are outside of our control. As a result, comparing our operating results on a period-to-period basis may not be meaningful. In addition to other risk factors discussed in this section, factors that may contribute to the variability of our quarterly and annual results include:
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Our typical practices as it relates to consumer safety and engagement on our platform may pose a risk to our relationships with advertising partners.
We base many of our decisions upon the interests of the consumers who use our platform. We believe that this approach has been essential to our success in increasing our user growth rate and engagement. Our approach of prioritizing consumer safety and engagement may negatively impact our relationships with our existing or prospective advertising partners. For example, we typically refuse to remove legitimate negative reviews and ratings of products or businesses that advertise on our platform. Certain advertisers may therefore perceive us as an impediment to their success as a result of negative reviews and ratings. This practice could result in a loss of advertising partners, which in turn could harm our results of operations.
Operational Risks
We have a history of operating losses, and we may not achieve or maintain profitability in the future, especially as we continue to invest in the growth of our business.
We have incurred significant cumulative operating losses since our inception, including net income of $5.1 million compared to a net loss of $12.0 million for the calendar years ended December 31, 2022 and 2021, respectively. We implemented plans to reduce operating expenses, including headcount reductions in October 2022 and March 2023. While we took these steps to reduce our expenses, we expect to continue to make significant investments to support platform feature development, expand our service offerings, expand our marketing, sales and community management operations, improve and expand our technology infrastructure, hire additional employees, pursue strategic opportunities, meet public company compliance requirements and otherwise support our operations and growth. If we do not achieve expected savings from our most recent cost-saving measures, or our operating costs increase more than we expect as a result of continued investments in strategic initiatives, our total operating costs would be greater than anticipated. In addition, if we do not manage our costs properly, such efforts may affect the quality of our products and features and our ability to generate future revenues. Reductions in staff could also adversely affect our ability to attract and retain key employees.
Notwithstanding our current efforts to manage costs, our growth to date has placed substantial demands on management and our operational infrastructure. As we continue to evolve our business, we must effectively integrate, develop and motivate a large number of new employees, including employees in international markets, while maintaining the beneficial aspects of our company culture. As we continue to grow, we expect the aggregate amount of these expenses will also continue to grow over time.
If our efforts to grow our business are more costly than we expect, we may not be able to increase our revenue enough to offset our higher operating expenses. We may incur losses in the future for a number of reasons, including as a result of
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unforeseen expenses, difficulties, complications and delays, and the other risks described herein and other unknown events. The amount of future net losses will depend, in part, on the growth of our future expenses and our ability to generate revenue. If we continue to incur losses in the future, any such future losses, together with the net losses and negative cash flows from operations incurred to date, will have an adverse effect on our shareholders’ accumulated deficit and working capital. Because of the numerous risks and uncertainties associated with our business and the cannabis industry, as outlined herein, we are unable to accurately predict when, or if, we will be able to achieve profitability. Even if we achieve profitability in the future, we may not be able to sustain profitability in subsequent periods. If we are unable to achieve and sustain profitability, the market price of our common stock may decrease and our ability to raise capital, expand our business or continue our operations may be impaired. A decline in the value of common stock may also cause you to lose all or part of your investment.
There is uncertainty regarding our ability to maintain liquidity sufficient to operate our business effectively, which raises substantial doubt about our ability to continue as a going concern.
We have incurred recurring operating losses, used cash from operations, and relied on the capital raised in our merger transaction to continue ongoing operations. These conditions, when considered in the aggregate, raise substantial doubt about our ability to continue as a going concern for the next twelve months. We recently implemented restructuring plans, including reductions in force and other cost cutting measures, which are expected to reduce our costs, preserve our capital and strengthen our financial position and which we believe alleviate the substantial doubt about our ability to continue as a going concern. While we continue to believe we will operate as a going concern, there can be No assurances that this will continue to be the case, particularly if our restructuring plans are not successful and do not result in the cost-savings we expect. If we do not achieve the expected savings, or our operating costs increase more than we expect, our total operating costs would be greater than anticipated, which could have a material adverse impact on our ability to continue as a going concern, which in turn would have a material adverse impact on our business and financial condition.
If we fail to maintain and expand our brand and retailer client base, our revenue and our business will be harmed.
In the fiscal year ended December 31, 2022, substantially all of our revenue was generated by (a) the sale of advertising solutions, and (b) subscription listing fees. Our ability to grow our business depends on our ability to maintain and expand our brand and retailer client base. To do so, we must convince prospective advertising partners of the benefits of our advertising solutions, including providing additional information and context to those prospective advertisers who may not be familiar with our solutions (such as those in new markets). We must also convince existing and prospective advertising partners alike that our advertising solutions work to their benefit. Additionally, our policy to decline acceptance of advertising or listings from companies that cannot demonstrate proper licensure may cause us to limit our advertising base and forgo certain revenue opportunities. Failure to maintain and expand our advertising partner base could harm our business.
Our advertising partners do not typically have long-term obligations to purchase our services. In addition, we rely heavily on the purchase of advertising solutions by small and medium-sized local businesses, which have historically experienced high failure rates and often have limited advertising budgets. As a result, we may experience attrition in our advertising partners in the ordinary course of business resulting from several factors, including losses to lower priced competitors, perceptions that our advertising solutions are unnecessary or ineffective, decline in advertising budgets, the impact of the COVID-19 pandemic, closures and bankruptcies. We must continually add new advertising partners both to replace advertisers who choose not to renew their advertising, go out of business or otherwise fail to fulfill their advertising contracts with us, and to grow our business. Our advertising partners’ decisions to renew depend on a number of factors, including the degree of satisfaction with our services and their ability to continue their operations and spending levels. The ratings and reviews that our suppliers receive from our users, may also affect advertising decisions by current and prospective advertising partners. For instance, favorable ratings and reviews, on the one hand, could be perceived as obviating the need to advertise, and unfavorable ratings and reviews, on the other hand, could discourage businesses from advertising to an audience they perceive as hostile or cause them to form a negative opinion of our products and user base, which could discourage them from doing business with us. Furthermore, our internal teams may take down a supplier’s information if it breaches our listing restrictions, which may also affect advertising decisions by current and prospective advertising partners. In addition, the growth rates for new consumers, number of paying suppliers and monthly revenue per suppliers have at times slowed and
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may similarly slow in the future, even if we continue to add clients and consumers on an absolute basis. If our advertising partners increase their rates of non-renewal, if we experience significant advertising partner attrition or contract breach, or if we are unable to attract new advertising partners in numbers greater than the number of advertising partners that we lose, our client base will decrease and our business, financial condition and results of operations would be harmed.
If we do not successfully develop and deploy new software, platform features or services to address the needs of our suppliers and consumers, our business, financial condition, and results of operations could suffer.
Our success has been based on our ability to design software, platform features and services that address the needs of our suppliers and consumers. We spend substantial amounts of time and money researching and developing new technologies and enhanced versions of existing platform features to meet our suppliers’ and consumers’ and potential suppliers’ and consumers’ rapidly evolving needs, including online order and reservation solutions. Additionally, as consumers and suppliers demand richer data integrations with other cannabis industry participants such as point-of-sale providers and loyalty service providers, third party technology integrations may become increasingly important. If we are unable to arrange or complete new integrations, or improve our existing integrations, we may lose market share to competitors. There is no assurance that our enhancements to our software, platform features or our new services or capabilities will be compelling to our consumers or gain market acceptance. If our research and development investments do not accurately anticipate supplier or consumer demand or if we fail to develop our software, platform features or services in a manner that satisfies supplier or consumer preferences in a timely and cost-effective manner, we may fail to retain our existing suppliers or consumers or increase demand for our services.
The introduction of new products and services by competitors or the development of entirely new technologies to replace existing service offerings could make our platforms obsolete or adversely affect our business, financial condition, and results of operations. We may experience difficulties with software development, design, or marketing that delay or prevent our development, introduction or implementation of new platforms, platform features or capabilities, or cause errors to arise with our existing software. We have in the past experienced delays in our internally planned release dates of new features and capabilities, and there can be no assurance that new platforms, platform features, or capabilities will be released according to schedule. Any delays could result in adverse publicity, loss of revenue or market acceptance, or claims by consumers or suppliers brought against us, any of which could harm our business. Moreover, the design and development of new platforms or new platform features and capabilities to our existing platform may require substantial investment, and we have no assurance that such investments will be successful. If consumers or suppliers do not widely adopt our new platforms, platform features, and capabilities, we may not be able to realize a return on our investment and our business, financial condition, and results of operations may be adversely affected.
If we fail to expand effectively into new markets, both domestically and abroad, our revenue and business will be adversely affected.
We intend to expand our operations into new markets, both domestically and internationally. In doing so, we may incur losses or otherwise fail to enter new markets successfully. Our expansion into new markets places us in competitive environments with which we may be unfamiliar and involves various risks, including, among others, the need to invest significant resources and the possibility that returns on such investments will not be achieved for several years, or at all. In attempting to establish a presence in new markets, we expect, as we have in the past, to incur significant expenses and face various other challenges, such as compliance with market-specific laws or regulations, gaining consumer and customer acceptance, and expanding our sales force and community management personnel to cover those new markets. Our current and any future expansion plans will require significant resources and management attention. Furthermore, we have already entered many of the largest existing markets in the United States and further expansion may not yield similar results or sustain our growth.
We may fail to offer the optimal pricing of our services.
We have limited experience in determining the optimal pricing of our services, and we may need to change our pricing model from time to time. For example, we charge different rates for the same services in different markets, based on a variety of
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factors such as the number of local retailers and consumer traffic and engagement. If our suppliers believe the cost of our services do not generate proper return on investment, such suppliers may decline to continue using our services, and our revenue and other financial results may be adversely impacted.
Our international operations involve additional risks, and our exposure to these risks will increase as we expand internationally.
Our traffic is global, and we expect to expand our international operations by accessing new markets abroad and expanding our offerings in new languages. Our platform is primarily available only in English. We may have difficulty modifying our technology and content for use in non-English-speaking markets or fostering new communities in non-English-speaking markets. Our ability to manage our business and conduct our operations internationally requires, and will require considerable and growing, management attention and resources and is subject to the particular challenges of supporting a rapidly growing business in an environment of multiple languages, cultures, customs, legal systems, alternative dispute systems, regulatory systems and commercial infrastructures. Furthermore, in most international markets, we would not be the first entrant, and our competitors may be better positioned than we are to succeed. Expanding internationally may subject us to risks that we have either not faced before or increase our exposure to risks that we currently face, including risks associated with:
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We may not timely and effectively scale and adapt our existing technology and network infrastructure to ensure that our platform is accessible.
It is important to our success that users in all geographies be able to access our platform at all times. We have previously experienced, and may experience in the future, service disruptions, outages and other performance problems due to a variety of factors, including infrastructure changes, human or software errors, capacity constraints due to an overwhelming number of users accessing our platform simultaneously, denial of service attacks, or fraud, ransomware or security attacks. We may not be able to implement adequate preventative measures or halt such attacks, and we cannot guarantee that applicable recovery systems, security protocols, network protection mechanisms and other procedures are or will be adequate to prevent network and service interruption, system failure or data loss. In some instances, we may not be able to identify the cause or causes of these performance problems within an acceptable period of time. It may become increasingly difficult to maintain and improve the availability of our platform, especially during peak usage times and as our solutions become more complex and our user traffic increases. If our platform is unavailable when users attempt to access it or it does not load as quickly as they expect, users may seek other services to obtain the information for which they are looking, and may not return to our platform as often in the future, or at all. This would negatively impact our ability to attract users, suppliers and advertising partners and increase engagement on our website and mobile application. We expect to continue to make significant investments to maintain and improve the availability of our platform and to enable rapid releases of new features and products. To the extent that we do not effectively address capacity constraints, upgrade our systems as needed and continually develop our technology and network architecture to accommodate actual and anticipated changes in technology, our business and operating results may be harmed. Furthermore, any actual or perceived distributed denial of service (“DDoS”) attack, ransomware attack, security breach or other unauthorized access could damage our reputation and brand, result in decreased utilization of our platform, expose us to fines and penalties, government investigations, litigation, require us to expend significant capital and other resources to remediate the incident, and cause increased cybersecurity protection costs. For more information, see “- General Risks - If our security measures are compromised, or if our platform is subject to attacks that degrade or deny the ability of users to access our content, users may curtail or stop use of our platform” and “We rely upon cloud-based data centers, infrastructure and technologies provided by third parties, and technology systems and electronic networks supplied and managed by third parties, to operate our business, and interruptions or performance problems with these systems, technologies and networks may adversely affect our business and operating results” below.
We are in the process of implementing a disaster recovery program, which will allow us to move our platform to a back-up data center in the event of a catastrophe. Although this program is partially functional, it does not provide a real time back-up data center, so if our primary data center shuts down, there will be a period of time that our platform will remain unavailable while the transition to the back-up data center takes place.
We rely on third-party service providers for certain aspects of our business.
To some extent, we rely on data about certain products or businesses from third parties, including their respective websites and third parties that license such information to us. We also rely on third parties for other aspects of our business, such as mapping functionality and administrative software and back office solutions. From time-to-time, certain third-party service providers (including in the ERP, payroll, HRIS, tax compliance, back office finance and SMS services fields) have terminated their relationship with us based on our involvement in the cannabis industry. Others with whom we may have desired to form a relationship have declined our requests on the same basis. If these third parties decline to work with us, provide inaccurate or incorrect information, experience difficulty meeting our requirements or standards, or our licenses are revoked or not renewed, it could make it difficult for us to operate some aspects of our business, which could damage our reputation. In addition, if such third party service providers were to cease operations, temporarily or permanently, face financial distress or other business disruption, increase their fees or if our relationships with these providers deteriorate, we could suffer increased costs and delays in our ability to provide consumers and advertising partners with content or provide similar services until an equivalent provider could be found or we could develop replacement technology or operations. Furthermore, if a sufficient number of third parties decline to work with us, we may have a limited number of third party service providers available to meet our business needs, which may limit our ability to negotiate favorable prices and terms. In addition, if we are
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unsuccessful in choosing or finding high-quality partners, if we fail to negotiate cost-effective relationships with them, or if we ineffectively manage these relationships, it could have an adverse impact on our business and financial performance.
Our payment system and the payment systems of our suppliers depend on third-party providers and are subject to evolving laws and regulations.
We have engaged third-party service providers to perform credit and debit card processing services for suppliers’ payments to us. If these service providers do not perform adequately or if our relationships with these service providers were to terminate, our ability to process payments could be adversely affected and our business could be harmed. Additionally, some of our suppliers use similar third-party providers for processing services. If these service providers do not perform adequately or if the relationships of our suppliers with these service providers were to terminate, the ability of our suppliers to process payments could be adversely affected and our business could be harmed. The laws and regulations related to payments are complex and are potentially affected by tensions between federal and state treatment of the cannabis and other industries. These laws and regulations also vary across different jurisdictions in the United States, Canada and globally. As a result, we are required to spend significant time and effort to comply with those laws and regulations. Any failure or claim of our failure to comply, or any failure by our third-party service providers to comply, could cost us substantial resources, could result in liabilities, or could force us to stop offering our suppliers the ability to pay with credit cards, debit cards and bank transfers. As we expand the availability of these payment methods or offer new payment methods to our suppliers in the future, we may become subject to additional regulations and compliance requirements. Due to the constantly evolving and complex laws and regulations applicable to our industry, third-party merchant banks and third-party payment processors may consider our business a high risk. This could cause a third party to discontinue its services to us, and we may not be able to find a suitable replacement. If this were to occur, we would need to collect from our suppliers using less efficient methods, which could adversely impact our collections, revenues and financial performance. Additionally, if a third party were to discontinue its services to us or if the applicable laws and regulations were to evolve in a way that impacted us negatively, we may not be able to realize our plans of expanding our business offerings, which could have a material adverse effect on our operations and our plans for expansion. For more information, see “— Additional Risks Related to the Cannabis Industry — Leafly’s operations may be negatively affected by the way other private companies interpret laws and regulations applicable to the cannabis industry, or their policies and practices with respect to the cannabis industry,” “Additional Risks Related to the Cannabis Industry — We are dependent on our banking relationships, and due to our connection with the cannabis industry, we may have difficulty accessing or consistently maintaining banking or other financial services” and “— Regulatory Risks — We are subject to governmental laws, regulations and other legal obligations, particularly related to privacy, data protection and information security, and any actual or perceived failure to comply with such obligations could harm our business” below.
Further, through our agreement with our third-party credit card processors, we are subject to payment card association operating rules and certification requirements, including restrictions on product mix and the Payment Card Industry Data Security Standard (“PCI-DSS”). We are also subject to rules governing electronic funds transfers. Any change in these rules and requirements could make it difficult or impossible for us to comply. Additionally, any data breach or failure to hold certain information in accordance with PCI-DSS may have an adverse effect on our business and results of operations.
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We track certain performance metrics with internal tools and do not independently verify such metrics. Certain of our performance metrics are subject to inherent challenges in measurement, and real or perceived inaccuracies in such metrics may harm our reputation and negatively affect our business.
We calculate and track performance metrics with internal tools, which are not independently verified by any third-party. While we believe our metrics are reasonable estimates of our user or supplier base for the applicable period of measurement, the methodologies used to measure these metrics require significant judgment and may be susceptible to algorithm or other technical errors. For example, user accounts are based on email addresses, and a user could use multiple email addresses to establish multiple accounts, and suppliers may have multiple accounts. As a result, the data we report may not be accurate. Our internal tools and processes we use to identify multiple accounts or fraudulent accounts have a number of limitations, and our methodologies for tracking key metrics may change over time, which could result in unexpected changes to our metrics, including historical metrics. For more information regarding such metrics, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Key Metrics.” Our ability to recalculate our historical metrics may be impacted by data limitations or other factors that require us to apply different methodologies for such adjustments and we generally do not intend to update previously disclosed metrics for any such changes. Though we regularly review our processes for calculating metrics and may adjust our processes for calculating metrics to improve their accuracy, limitations or errors with respect to how we measure data (or the data that we measure) may affect our understanding of certain details of our business, which could affect our longer term strategies. If our performance metrics are not accurate representations of our business, user or supplier base, or traffic levels; if we discover material inaccuracies in our metrics; or if the metrics we rely on to track our performance do not provide an accurate measurement of our business, user or supplier base or traffic levels, we may not be able to effectively implement our business strategy, our reputation may be harmed, and our operating and financial results could be adversely affected.
Our suppliers and investors rely on our key metrics as a representation of our performance. If these third parties do not perceive our user metrics to be accurate representations of our user base or user engagement, or if we discover material inaccuracies in our user metrics, our investors could bring lawsuits against us, our reputation may be harmed and retailers may be less willing to list a business on our platform, which could negatively affect our business, financial condition, or results of operations.
The traffic to our website and mobile application may decline and our business may suffer if other companies copy information from our platform and publish or aggregate it with other information for their own benefit.
From time to time, other companies copy information from our platform, through website scraping, robots or other means, and publish or aggregate it with other information for their own benefit. While we aggressively enforce our copyrights, we have no assurance that other companies will not copy, publish or aggregate content from our platform.
We may not be able to detect such third party conduct in a timely manner and, even if we could, we may not be able to prevent it. In some cases, particularly in the case of websites operating outside of the United States and Canada, our available remedies may be inadequate to protect us against such practices due to a variety of potential issues, including uncertain common law protections, jurisdictional issues, lack of adequate remedies under applicable law and difficulty in identifying potential defendants. In addition, we may be required to expend significant financial or other resources to successfully enforce our rights. When third parties copy, publish, or aggregate content from our platform, it makes them more competitive, and decreases the likelihood that consumers will visit our website or use our mobile application to find the information they seek, which could negatively affect our business, financial condition and results of operations.
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Real or perceived errors, failures, or bugs in our platform could adversely affect our operating results and growth prospects.
We update our platform on a frequent basis. Despite efforts to test our updates, we have discovered and expect we will continue to discover errors, failures and bugs in our platform and anticipate that certain of these errors, failures and bugs will only be discovered and remediated after deployment to suppliers. Real or perceived errors, failures or bugs in our platform could result in negative publicity, security incidents, such as data breaches, government inquiries, loss of or delay in market acceptance of our platform, loss of competitive position, or claims by suppliers for losses sustained by them. In such an event, we may be required, or may choose, for supplier relations or other reasons, to expend additional resources in order to help correct the problem.
We implement bug fixes and upgrades as part of our regular system maintenance, which may lead to system downtime. Even if we are able to implement the bug fixes and upgrades in a timely manner, any history of inaccuracies in the data we collect for our suppliers, or unauthorized access or damage to, or the loss, acquisition, or inadvertent release or exposure of confidential or other sensitive data could cause our reputation to be harmed and result in claims against us, and cannabis businesses may elect not to purchase our products or, in the case of existing suppliers, renew their agreements with us or we may incur increased insurance costs. The costs associated with any material defects or errors in our software or other performance problems may be substantial and could harm our operating results and growth prospects.
We rely on traffic to our website from search engines like Google, Yahoo!, Bing and DuckDuckGo, as well as paid digital advertising and social media marketing. If our website fails to rank prominently in unpaid search results, traffic to our website could decline and our business would be adversely affected.
Our success depends in part on our ability to attract users through unpaid internet search results on search engines like Google, Yahoo!, Bing and DuckDuckGo. In total, search engines accounted for approximately 73% of the sessions on our platform during 2022. The number of users we attract to our website from search engines is due in large part to how and where our website ranks in unpaid search results. These rankings can be affected by a number of factors, many of which are not in our direct control, and they may change frequently. For example, a search engine may change its ranking algorithms, methodologies or design layouts. As a result, links to our website may not be prominent enough to drive traffic to our website, and we may not be in a position to influence the results. In some instances, search engine companies may change these rankings in order to promote their own competing services or platform features or the services or platform features of one or more of our competitors. Our website has experienced fluctuations in search result rankings in the past, and we anticipate fluctuations in the future. Any reduction in the number of users directed to our website could adversely impact our business and results of operations, particularly if our competitors are permitted to engage in paid promotion.
Google in particular is the most significant source of traffic to our website, accounting for more than 97% of the search engine-generated sessions on our platform in 2022. Since Google does not allow us to engage in paid promotion of our website, we rely on organic prominence. Our success depends in part on our ability to maintain a prominent presence in search results for queries regarding local businesses on Google. Given the large volume of traffic to our website and the importance of the placement and display of results of a user’s search, the continued inability to engage in paid promotion could have a substantial negative effect on our business and results of operations.
Our ability to place digital advertisements for the Leafly platform is constrained because certain large digital ad networks, such as those owned or operated by Alphabet, Amazon, Microsoft, Meta and Twitter, do not allow us to advertise. As a result, we are limited to digital ad placements on independently owned websites, such as certain local news websites.
Additionally, visits to Leafly could also decline if our accounts on Facebook, Instagram or Twitter are shut down or restricted. We work across these social networks to increase brand awareness of our company by consumers and suppliers, and to promote the acquisition of brand and retailer clients. Our engagement on these social media platforms is subject to their respective terms of service and community guidelines, which generally restrict the promotion, sale and, often, depiction of cannabis. While we do not promote the sale of cannabis or cannabis-related products by our suppliers on these social media platforms, the perception that we may be engaging in such promotion or our inadvertent violation of other aspects of these
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platforms’ terms of service or community guidelines may result in our accounts being shut down or restricted. Any such suspension or restriction could result in reduced traffic to our website and diminished demand for our services, which could adversely affect our business and operating results.
If our current marketing model is not effective in attracting new brand and retailer clients, we may need to employ higher-cost sales and marketing methods to attract and retain brand and retailer clients, which could adversely affect our profitability.
We use our sales team to build relationships with our supplier base. Our sales team builds and maintains relationships with suppliers primarily through phone and email contact, which is designed to allow us to cost-effectively service a large number of suppliers. We may need to employ more resource-intensive sales methods, such as increasing our enterprise or field sales teams, to continue to attract and retain brand and retailer clients, particularly as we increase the number of our brand and retailer clients and our supplier base employs more sophisticated marketing operations, strategies and processes. This could cause us to incur higher sales and marketing expenses, which could adversely affect our business and operating results.
Mobile is an important component of our business, and it presents unique risks.
Our mobile applications, including mobile web-based access, represents a significant portion of our user traffic. If we fail to deliver compelling platform features and services or effective advertising solutions, our business may suffer.
We have experienced challenges with Apple’s AppStore and Google’s Play Store with regard to the implementation of certain features in our iOS and Android applications, respectively. Historically, Apple did not permit us to deploy our “Pickup” online order reservation features to users based in the United States, although Apple now allows consumers to pre-order through iOS applications. Apple has on occasion rejected application updates for various reasons, including the claimed basis that digital advertising for cannabis violates their Terms of Service. When necessary, we have implemented workarounds, including directing users to mobile web applications; however, these solutions are suboptimal, can be frustrating to users, and could hinder awareness or adoption of platform features or services which are important to our future growth. If we experience difficulties in the future in integrating our mobile application into mobile devices or if problems arise with our relationships with providers of mobile operating systems or mobile application download stores, such as those of Apple or Google, or if our applications receive unfavorable treatment compared to the promotion and placement of competing applications, such as the order of our products in the Apple AppStore or the Google Play Store, or if we face increased costs to distribute our mobile application, our future growth and our results of operations could suffer.
We rely upon cloud-based data centers, infrastructure and technologies provided by third parties, and technology systems and electronic networks supplied and managed by third parties, to operate our business, and interruptions or performance problems with these systems, technologies and networks may adversely affect our business and operating results.
We rely on data centers and other technologies and services provided by third parties in order to host our cloud-based infrastructure on which we operate our business. If any of these services becomes unavailable or otherwise is unable to serve our requirements due to extended outages, interruptions, or facility closure, or because it is no longer available on commercially reasonable terms, our expenses could increase, our ability to manage finances could be interrupted and our operations could be disrupted or otherwise impacted until appropriate substitute services, if available, are identified, obtained, and implemented.
We do not control, or in some cases have limited control over, the operation of the data center facilities and infrastructure we use, and they are vulnerable to damage or interruption from earthquakes, floods, fires, power loss, telecommunications failures, cyberattack, terrorism and similar other events. They may also be subject to break-ins, sabotage, intentional acts of vandalism and similar misconduct, to adverse events caused by operator error, and to interruptions, data loss or corruption, and other performance problems due to various factors, including introductions of new capabilities, technology errors, infrastructure changes, DDoS attacks, or other security-related incidents, and our business interruption insurance may be insufficient to compensate us for related losses that may occur. Changes in law or regulations applicable to data centers in various jurisdictions could also cause a disruption in service. Despite precautions taken at these facilities, the occurrence of
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a natural disaster, an act of terrorism or other act of malfeasance, a decision to close the facilities without adequate notice or other unanticipated problems at these facilities could result in lengthy interruptions in our platform operations and the loss, corruption of, unauthorized access to or acquisition of supplier or consumer data.
Our platform also depends on our ability to communicate through the public internet and electronic networks that are owned and operated by third parties. In addition, in order to provide our solutions on-demand and promptly, our computer equipment and network servers must be functional 24 hours per day, which requires access to telecommunications facilities managed by third parties and the availability of electricity, which we do not control. A severe disruption of one or more of these networks or facilities, including as a result of utility or third-party system interruptions, could impair our ability to process information and provide our solutions to our suppliers and consumers.
Any unavailability of, or failure to meet our requirements by, third-party data centers or other third-party technologies or services, or any disruption of the internet, utilities or the third-party networks or facilities that we rely upon, could impede our ability to make our platform accessible, harm our reputation, result in reduced traffic from consumers, cause us to issue refunds or credits to our suppliers, and subject us to potential liabilities. Any of these circumstances could adversely affect our business, reputation and operating results.
We face potential liability and expense for legal claims based on the content on our platform.
We provide educational information regarding the use and potential effects of various types of cannabis products through our platform, including information regarding potential therapeutic uses for cannabis. If our content, or content we obtain from third parties, contains inaccuracies or perceived inaccuracies, it is possible that consumers or others may sue us for various causes of action. Although our website and mobile applications contain terms and conditions, including disclaimers of liability, that are intended to reduce or eliminate our liability, the law governing the validity and enforceability of online agreements and other electronic transactions is evolving. We could be subject to claims by third parties that our online agreements with consumers that provide the terms and conditions for use of our websites and mobile applications are unenforceable. A finding by a court that these agreements are invalid and that we are subject to liability could harm our business and require costly changes to our business.
For content that we publish or provide ourselves, we have editorial procedures in place to provide quality control of the information. However, we cannot provide assurance that our editorial and other quality control procedures will be sufficient to ensure that there are no errors or omissions in particular content. Even if potential claims do not result in liability to us, investigating and defending against these claims could be expensive and time-consuming and could divert our management’s attention away from our operations. In addition, our business is based on establishing the reputation of our platform as a trustworthy and dependable source of educational information. Allegations of impropriety or inaccuracy, even if unfounded, could harm our reputation and business.
We also face potential liability and expense for legal claims relating to the information that we publish on our website and mobile application, including claims for defamation, libel, negligence and copyright or trademark infringement, among others. For example, businesses in the past have claimed, and may in the future claim, that their search result display is arbitrary or improper, that we are responsible for third party infringement, that our editorial content is defamatory, or that we are responsible for defamatory reviews posted by our users.
We expect claims like these to continue, and these claims could divert management time and attention away from our business and result in significant costs to investigate and defend, regardless of the merits of the claims. In some instances, we may elect or be compelled to remove or re-order content or may be forced to pay substantial damages if we are unsuccessful in our efforts to defend against these claims. If we elect or are compelled to remove or re-order valuable content from our website or mobile application, our platform may become less useful to consumers and our traffic may decline, which could have a negative impact on our business and financial performance.
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We may need to raise additional capital, which may not be available on favorable terms, if at all, causing dilution to our stockholders, restricting our operations or adversely affecting our ability to operate our business.
We intend to continue to make investments to support our business growth and may require additional funds to respond to business challenges and opportunities, including the need to develop new platform features and services or enhance our existing services, improve our operating infrastructure or acquire complementary businesses and technologies. Accordingly, we may need to engage in equity or debt financings to secure additional funds. If we raise additional funds through future issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of holders of our common stock. Debt financing, if available, may involve agreements that include equity conversion rights, covenants limiting or restricting our ability to take specific actions, such as incurring additional debt, expending capital, pursuing certain business opportunities or declaring dividends.
We may not be able to obtain additional financing on terms favorable to us, if at all, including as a result of macroeconomic conditions such as a severe or prolonged economic downturn. Disruption, uncertainty or volatility in the capital markets could increase our cost of capital or limit our ability to raise funds needed to operate our business. Disruptions could be caused by Federal Reserve policies and actions, currency concerns, inflation, economic downturn or uncertainty, monetary policies, failures of financial institutions, U.S. debt management concerns, and U.S. debt limit and budget disputes, including government shutdowns, European and worldwide sovereign debt concerns, other global or geopolitical events, or other factors. Current macroeconomic conditions have negatively impacted the U.S. banking sector, including for example, the recent closures and FDIC receiverships of Silicon Valley Bank and Signature Bank. Although we do not have any accounts at or business relationships with these banks, we may be negatively impacted by other disruptions to the U.S. banking system caused by these or similar developments.
In addition, due to the current legal status of cannabis under U.S. federal law, we have experienced, and may in the future experience, difficulty attracting additional debt or equity financing. If we are unable to obtain adequate financing or financing on terms satisfactory to us when we require it, our ability to continue to support our business growth and to respond to business challenges could be significantly impaired, our business may be harmed, our stock price may fall, and you may lose your investment.
We may acquire other companies or technologies, which could divert our management’s attention from the business, result in additional dilution to our stockholders and otherwise disrupt our operations and harm our operating results.
Our success will depend, in part, on our ability to expand our service offerings and grow our business in response to changing technologies, user, supplier and advertising partner demands and competitive pressures. In some circumstances, we may determine to do so through acquisitions, mergers, partnerships, joint ventures or other strategic transactions with complementary businesses or technologies rather than through internal development. We have limited experience acquiring other businesses and technologies. The pursuit of potential acquisitions may divert the attention of management and cause us to incur expenses in identifying, investigating and pursuing suitable acquisitions, whether or not they are consummated. Furthermore, even if we successfully acquire additional businesses or technologies, we may not be able to integrate the acquired personnel, operations and technologies successfully, or effectively manage the combined business following the acquisition. We also may not achieve the anticipated benefits from the acquired business or technology. In addition, we may inherit liabilities from future acquisitions that arise after the acquisition and are not adequately covered by indemnities. Acquisitions could also result in dilutive issuances of equity securities or the incurrence of debt, which could adversely affect our financial condition and results of operations. If an acquired business or technology fails to meet our expectations, our business, financial condition, and results of operations may suffer.
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Regulatory Risks
Our business is dependent on U.S. state laws and regulations and Canadian federal and provincial laws and regulations pertaining to the cannabis industry.
In the United States, despite cannabis being legalized under state law in some form in many states and notwithstanding the federal government’s tolerance of state legalization schema, cannabis continues to be categorized as a Schedule I controlled substance under the federal Controlled Substances Act (“CSA”). The CSA makes it a federal crime to possess, grow, process, distribute, or sell cannabis or cannabis products in the United States, even in states in which medical or recreational cannabis has been legalized under state law. It is also a federal crime to aid and abet another in possessing, growing, distributing, processing or selling cannabis or cannabis products, and it can be illegal to engage in certain transactions with those possessing, growing, distributing, processing, or selling cannabis or cannabis products, if the goal of the transactions is to promote those activities or conceal that the source of the proceeds in the transaction came from those activities. We do not possess, grow, distribute, process, or sell cannabis in the United States. However, there is a risk that federal prosecutors may seek to apply the CSA and other laws to us, that U.S. courts may change their interpretation of the CSA, and that violations of any U.S. federal laws and regulations, such as the CSA, could result in significant fines, penalties, administrative sanctions, convictions or settlements arising from civil proceedings initiated by either the federal government or private citizens, or criminal charges, including, but not limited to, disgorgement of profits, cessation of business activities or divestiture.
In Canada, the Cannabis Act legalized the commercial cultivation and processing of cannabis for medical and adult-use purposes in Canada and created a federal legal framework for controlling the production, distribution, promotion, sale and possession of cannabis. The Cannabis Act also provides the provinces and territories of Canada with the authority to regulate other aspects of adult-use cannabis, such as distribution, sale, minimum age requirements (subject to the minimum set forth in the Cannabis Act), places where cannabis can be consumed, and a range of other matters. The governments of every Canadian province and territory have implemented regulatory regimes for the distribution and sale of cannabis for recreational purposes. In addition, the Cannabis Act provides that it is prohibited to publish, broadcast or otherwise disseminate, on behalf of another person, with or without consideration, any promotion that is prohibited by a number of sections of the Cannabis Act. The Cannabis Act therefore includes provisions that could apply to certain aspects of our business, both directly to the solutions we provide and indirectly on account of any noncompliance by those who use our offerings. As required by the Cannabis Act, the Canadian Minister of Health is conducting a legislative review of the Cannabis Act to assess progress made towards the Cannabis Act's objectives, identify areas to improve in the legislation, and give advice on areas to improve or reform. The Minister of Health will report its findings from the legislative review to both Houses of Parliament 18 months after starting the review, which could lead to changes being made to the Cannabis Act, including changes that may have negative impacts on the cannabis industry and our business.
Laws and regulations affecting the cannabis industry in U.S. states and Canada are continually changing. Any change in regulations or even the speed of changes to regulations, more vigorous enforcement thereof or other unanticipated events could require us to incur substantial costs associated with compliance, to alter our business plan or give rise to material liabilities, and could materially and adversely affect our operations, revenue, and profitability. The commercial cannabis industry is still a young industry, and we cannot predict the impact of the compliance regime to which our business may be subject. Although we have not yet been required to obtain any cannabis license as a result of existing cannabis regulations, it is possible that regulations may be enacted in the future that will require us to obtain such a license in order to provide our services in a particular jurisdiction or that will otherwise seek to substantially regulate our business and there can be no assurances that we will be able to obtain such licenses. These laws change frequently and may be difficult to interpret and apply. For example, the Florida Department of Health (“FL DOH”) made a determination that licensed dispensaries’ use of our online ordering reservation system violated Florida's statutory requirement that no third parties be directly involved in dispensing cannabis. We filed a legal challenge against the FL DOH, alleging that it had wrongfully promulgated an un-adopted rule, which erroneously interpreted the statute. In October 2021, the administrative law judge issued a final order that the FL DOH’s policy of prohibiting online third-party pre-reservation services was in fact an unadopted rule. In response, the FL DOH adopted an emergency rule to maintain its policy. As a result, our suppliers in Florida that previously ceased
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use of the online ordering feature must obtain regulatory approval to resume using these features and, as a result, our business in Florida continues to be adversely affected.
Given the concentration of our revenue from the sale of subscriptions to retailers to list their products, any increase in the stringency of any applicable laws, including U.S. state, or Canadian federal, provincial or territorial laws and regulations relating to cannabis, or any escalation in the enforcement of such existing laws and regulations against the cannabis industry within any jurisdiction, could negatively impact the profitability or viability of cannabis businesses in such affected jurisdictions, which in turn could materially adversely affect our business and operating results.
For more information regarding risks the cannabis industry may present to our business, see the subsection entitled “— Additional Risks Related to the Cannabis Industry.”
Federal law enforcement may deem our suppliers to be in violation of U.S. federal law, in particular the CSA. An adverse change in U.S. federal policy on cannabis enforcement and strict enforcement of federal cannabis laws against our suppliers would undermine our business model and materially affect our business and operations.
Except in limited circumstances, U.S. federal law, and more specifically the CSA, proscribes the cultivation, processing, distribution, sale, and possession of cannabis. Although the Agriculture Improvement Act of 2018 removed hemp and hemp-derived cannabinoids that test below 0.3% delta-9 THC from the definition of “marihuana” in the CSA, and Omnibus Spending bills (described below) have protected state medical cannabis programs, cannabis remains a Schedule 1 controlled substance in the United States and is currently illegal under U.S. federal law. Even in those U.S. states in which the possession, growing, processing, distribution, sale and use of cannabis and cannabis products has been legalized, these activities continue to violate U.S. federal law. Additionally, in 2018, a series of memoranda and guidance from 2009 to 2014 that generally directed U.S. Attorneys not to enforce federal cannabis laws against actors who were in compliance with state guidance were formally rescinded and have never been formally reinstated. Since U.S. federal laws criminalizing the cultivation, processing, distribution, sale and possession of cannabis pre-empt state laws that legalize the same, continuation of U.S. federal law in its current state regarding cannabis could limit our ability to do business in the United States. As a result, U.S. federal law enforcement authorities, in their attempt to regulate the illegal or unauthorized production, distribution, promotion, sale, possession or use of cannabis, may seek to bring criminal actions against our suppliers under the CSA or other federal criminal laws. If our suppliers are found to be violating U.S. federal law relating to cannabis, they may be subject not only to criminal charges and convictions, but also to forfeiture of property, significant fines and penalties, disgorgement of profits, administrative sanctions, cessation of business activities, or civil liabilities arising from proceedings initiated by either the U.S. government or private citizens. Any of these actions or consequences to our suppliers could have a material adverse effect on our business, financial condition, and results of operations, or could force us to cease operations, and as a result, our investors could lose their entire investment.
Further, to the extent any law enforcement actions require us to respond to subpoenas, or undergo search warrants, including for supplier records, cannabis businesses could elect to cease using our products. Until the U.S. federal government changes the laws with respect to cannabis, and particularly if the U.S. Congress does not extend the Omnibus Spending Bill’s protection of state medical cannabis programs (described below) to apply to all state cannabis programs, U.S. federal authorities could more strictly enforce current federal prohibitions and restrictions. An increase in federal enforcement against companies licensed under state cannabis laws could negatively impact the state cannabis industries and, in turn, our business, financial condition, results of operations, brand and reputation.
For more information regarding risks the cannabis industry may present to our business, see the subsection entitled “— Additional Risks Related to the Cannabis Industry.”
The laws and regulations regarding hemp-derived products are unsettled, and an adverse change in U.S. federal policy towards our suppliers would materially affect our business and operations.
Some of our suppliers sell products containing hemp-derived cannabinoids, including CBD and certain forms of THC (including but not limited to delta-8 THC and THCO). Until 2018, hemp and hemp extracts (except mature stalks, fiber
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produced from the stalks, oil or cake made from the seeds and any other compound, manufacture, salt derivative, mixture or preparation of such parts) were classified by the federal government as “marihuana” under the CSA. The Agricultural Act of 2014, Pub. L. 113-79 (the “2014 Farm Bill”) and the Agriculture Improvement Act of 2018, Pub. L. 115-334 (the “2018 Farm Bill”), altered hemp’s status, such that hemp (which must, by definition, contain no more than 0.3% delta-9 THC on a dry weight basis) and hemp extracts, including CBD, are no longer defined as “marihuana” nor classified as a controlled substance.
The 2018 Farm Bill is set to lapse at the end of Fiscal Year 2023. While many observers anticipate that a new farm bill will be passed and that it will contain hemp provisions similar to the 2018 Farm Bill, there can be no guarantees that a new farm bill will be authorized, or that it will contain similar provisions. If the exemption for hemp-derived products is eliminated or significantly narrowed or otherwise altered, it may affect our ability to provide advertising services for some of our suppliers, which could have a material adverse effect on our business, financial condition, and results of operations.
The U.S. Food and Drug Administration (“FDA”) takes the position that the Food, Drugs & Cosmetics Act significantly limits the legality, marketing and sale of food and beverages containing hemp-derived cannabinoids and compounds (including CBD, THC, CBN, etc.) and that existing regulatory frameworks are not appropriate to regulate such products. The FDA has announced that it intends to work with Congress to determine new regulatory pathways. The Drug Enforcement Administration (“DEA”) has issued a non-binding communique addressing the allegedly synthetic nature of certain hemp derived products, which conclusion seems to be at odds with the Ninth Circuit Court of Appeals decision in AK Futures v. Boyd Street Distro, which is only binding in some western states. Without a regulatory framework in place, FDA and/or DEA may take enforcement action, and courts may reach the same or differing conclusions as the Ninth Circuit.
If we or our suppliers are found to be violating U.S. federal law or state law relating to hemp-derived products, we or they may be subject not only to criminal charges and convictions, but also to forfeiture of property, significant fines and penalties, disgorgement of profits, administrative sanctions, cessation of business activities, or civil liabilities arising from proceedings initiated by either the U.S. government or private citizens. Any of these actions or consequences to our suppliers could have a material adverse effect on our business, financial condition, and results of operations.
In the absence of federal regulation, a growing number of state governments have passed state-level legislation to regulate the legality, production, and sale of certain hemp-derived products. Some states impose licensing and regulatory requirements for the cultivation, processing, transportation, or distribution of hemp and hemp products. Many states also impose restrictions on the type of products that may be sold, including prohibiting the sale of certain hemp extracts (including delta-8 THC) or certain formats (such as ingestible products or smokable hemp), or limiting the manner in which they may be sold by, for example, prohibiting health claims in advertising. States could change their laws and make the requirements to grow, process, transport, advertise and distribute hemp and hemp products more difficult. States could also investigate whether or determine that we or our suppliers were found to be operating in violation of state law. Any of these actions or consequences could have a material adverse effect on our business, financial condition, and results of operations.
Allowing unlicensed or noncompliant businesses to access our services or allowing businesses to use our services in a noncompliant manner, including engaging in false or deceptive business practices, may subject us to legal or regulatory enforcement and/or negative publicity, which could adversely impact our business, operating results, financial condition, brand and reputation.
Our suppliers are contractually required to represent, warrant and covenant to us that they conduct their business in compliance with applicable state, municipal and provincial laws, and rules, which includes any applicable licensing requirements and the regulatory framework enacted by each state, municipality or province in which they do business. Suppliers further contractually agree to indemnify us for any damages we may suffer as a result of their noncompliance, and there is no guarantee that such suppliers will be able to fulfill such indemnification obligations. We rely on our suppliers’ contractual representations, and generally do not verify them, other than with respect to the licensed status of our suppliers operating cannabis retail and brands (i.e., product) businesses. We require suppliers to provide proof of valid corporate existence at the time we initially onboard them, or, if we understand that state or municipal law requires a separate cannabis
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license, to submit a valid, unexpired state-issued license number. We do not routinely validate whether that license number remains valid during the term of our suppliers’ use of our services. As a result, some of our suppliers or their listings currently and in the future may not be in compliance with licensing and related requirements under applicable state, municipal or provincial laws and regulations. Any potential legal enforcement actions against any of our suppliers selling cannabis for being unlicensed or insufficiently licensed could negatively impact us.
Any legal or regulatory enforcement against us based on the business solutions that we offer, the third-party content available on our platform or noncompliance by our suppliers with licensing and other legal requirements, could subject us to various risks, including monetary penalties and the risk that we elect or are compelled to remove content from our platform and would likely cause us to experience negative publicity. Any of these developments could materially and adversely impact our business, financial condition, results of operations, brand, and reputation.
We generally do not, and cannot, ensure that our suppliers will conduct their business activities in a manner compliant with regulations and requirements applicable to the cannabis industry. As a result, federal, state, provincial or local government authorities may seek to bring criminal, administrative or regulatory enforcement actions against our suppliers, which could have a material adverse effect on our business, operating results or financial conditions, or could force us to cease operations.
We offer features and services on our platform to support our suppliers’ compliance with certain regulations and other legal requirements applicable to the cannabis industry, such as (a) collecting medical marijuana cardholder information to assist dispensaries with their verification obligations, (b) age-gating in accordance with applicable state regulations, (c) reviewing cannabis license information for operational cannabis suppliers, both on submission and on a periodic ongoing basis, to ensure validity and accuracy and (d) requiring operational cannabis suppliers, including storefronts and delivery services, to provide a valid, unexpired state-issued license number before accepting their listings or advertisements on our platform. However, we generally do not, and cannot, ensure that our suppliers will conduct their business activities in a manner compliant with such regulations and requirements, in whole or in part. Their legal noncompliance could result in regulatory and even criminal actions against them by federal, state or provincial authorities, which could result in a material adverse impact on our business and operating results or financial condition, and as a result, our investors could lose their entire investment.
For additional information, see the other risk factors in this subsection entitled “— Regulatory Risks,” including “— Allowing unlicensed or noncompliant businesses to access our products, or allowing businesses to use our solutions in a noncompliant manner, including engaging in false or deceptive business practices, may subject us to legal or regulatory enforcement and/or negative publicity, which could adversely impact our business, operating results, financial condition, brand and reputation.” Additionally, please see the subsection entitled “— Additional Risks Related to the Cannabis Industry.”
We are subject to governmental laws, regulations and other legal obligations, particularly related to privacy, data protection and information security, and any actual or perceived failure to comply with such obligations could harm our business.
We are subject to regulation by various federal, state, provincial, local and foreign governmental authorities, including those responsible for monitoring and enforcing employment and labor laws, anti-bribery laws, lobbying and election laws, securities laws and tax laws. These laws and regulations are subject to change over time and thus we must continue to monitor and dedicate resources to ensure continued compliance.
In addition, our business is subject to regulation by various federal, state, provincial and foreign governmental agencies responsible for monitoring and enforcing privacy and data protection laws and regulations. Numerous foreign, federal and state laws and regulations govern collection, dissemination, use and confidentiality of personally identifiable health information that may impact our business, potentially including state privacy and confidentiality laws (including state laws requiring disclosure of breaches); federal and state consumer protection and employment laws, and European and other foreign data protection laws.
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We receive, store, process, and use personal information and other user content. The regulatory framework for privacy issues worldwide, including in the United States, is rapidly evolving and is likely to remain uncertain for the foreseeable future, as many new laws and regulations regarding the collection, use and disclosure of personally identifiable information (“PII”), and other data have been adopted or are under consideration and existing laws and regulations may be subject to new and changing interpretations. In the United States, the Federal Trade Commission and many state attorneys general are applying federal and state consumer protection laws to impose standards for the online collection, use and dissemination of data. In addition, although we do not believe we are subject to the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), we are aware that at least one state regulator has taken the position that HIPAA does apply to some of our suppliers. In the event we become subject to HIPAA, our costs related to PII would increase.
Many foreign countries and governmental bodies, including Canada and the European Union (“E.U.”), and other relevant jurisdictions where we conduct business have laws and regulations concerning the collection and use of PII and other data obtained from their residents or by businesses operating within their jurisdiction. These laws and regulations often are more restrictive than those in the United States. Laws and regulations in these jurisdictions apply broadly to the collection, use, storage, disclosure and security of data that identifies or may be used to identify or locate an individual, such as names, email addresses and, in some jurisdictions, internet protocol addresses and other types of data. The California Consumer Privacy Act of 2018 and its implementing regulations, as amended (the “CCPA”), which went into effect on January 1, 2020, establishes data privacy rights for consumers and compliance requirements for businesses doing business in California. Moreover, California voters approved the California Privacy Rights Act, (the “CPRA”), in November 2020. The CPRA significantly modifies the CCPA, creating obligations relating to consumer data beginning on January 1, 2023, with implementing regulations expected on or before July 1, 2023, and enforcement beginning July 1, 2023. Other states have adopted similar laws and regulations that go into effect in 2023, including Virginia, Colorado, Connecticut and Utah. In Canada, the federal Personal Information Protection and Electronic Documents Act (the “PIPEDA”) governs the collection, use and disclosure of PII in many provinces in Canada, and though it is silent with respect to territorial reach, the Federal Court of Canada has found that PIPEDA will apply to businesses established in other jurisdictions if there is a “real and substantial connection” between the organization’s activities and Canada. Provincial privacy commissioners take a similar approach to the interpretation and application of provincial private-sector privacy laws equivalent to PIPEDA. Further, Canada has robust anti-spam legislation. Organizations sending commercial electronic messages to individuals must either have express consent from the individual in the prescribed form or the situation must qualify as an instance of implied consent or other authorization set out in Canada’s Anti-Spam Legislation (the “CASL”). The penalties for non-compliance under CASL are significant and the regulator, the Canadian Radio-Television and Telecommunications Commission, is active with respect to enforcement. In addition, the E.U.’s General Data Protection Regulation (the “GDPR”), which went into effect in May 2018, requires subject companies to implement and maintain comprehensive information privacy and security protections with respect to personal data (data that relates to an identified or identifiable individual) about persons in the E.U. that is collected or processed by such companies. The GDPR provides for substantial penalties for noncompliance.
Although we are working to comply with those federal, state, provincial and foreign laws and regulations, industry standards, governmental standards, contractual obligations and other legal obligations that apply to us, those laws, regulations, standards and obligations are evolving and may be modified, interpreted and applied in an inconsistent manner from one jurisdiction to another, and may conflict with one another, other requirements or legal obligations, our practices or the features of our applications or platform. Any failure or perceived failure by us or our contractors to comply with federal, state, provincial or foreign laws or regulations, industry standards, contractual obligations or other legal obligations, or any actual or suspected security incident, whether or not resulting in loss of, unauthorized access to, or acquisition, alteration, destruction, release or transfer of PII or other data, may result in governmental enforcement actions and prosecutions, private litigation, fines and penalties or adverse publicity and could cause employees, suppliers and consumers to lose trust in us, which could have an adverse effect on our reputation and business. Any inability or perceived inability (even if unfounded) on our part to adequately address privacy, data protection, and information security concerns, or comply with applicable laws, regulations, policies, industry standards, governmental standards, contractual obligations, or other legal obligations, could result in additional cost and liability to us, damage our reputation, inhibit sales, and adversely affect our business.
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We also expect that there will continue to be new proposed laws, regulations and industry standards concerning privacy, data protection and information security in the United States, Canada, the E.U. and other jurisdictions, and we cannot yet determine the impact such future laws, regulations and standards may have on our business. Future laws, regulations, standards and other obligations, or amendments or changes in the interpretation of existing laws, regulations, standards and other obligations, could impair our or our suppliers’ ability to collect, use, disclose or otherwise process information relating to employees or consumers, which could decrease demand for our applications, increase our costs and impair our ability to maintain and grow our supplier and consumer bases and increase revenue. Such laws and regulations may require us to implement privacy and security policies, permit users to access, correct and delete personal information stored or maintained by such companies, inform individuals of security breaches that affect their personal information, and, in some cases, obtain individuals’ consent to use PII or other data for certain purposes. In addition, a foreign government could require that any data collected in a country not be transferred or disseminated outside of that country, or impose restrictions or conditions upon such dissemination, and we may face difficulty in complying with any such requirements for certain geographic regions. Indeed, many privacy laws, such as those in force in Canada and the E.U., already impose these requirements. If we fail to comply with federal, state, provincial and foreign data privacy laws and regulations, our ability to successfully operate our business and pursue our business goals could be harmed. Furthermore, due to our acceptance of credit cards, we are subject to the PCI-DSS, which is designed to protect the information of credit card users.
We have had security incidents in the past, which we do not believe reached the level of a breach that would be reportable under applicable state laws or our other obligations; however, there can be no assurance that our determinations were correct. In the event our determinations are challenged and found to have been incorrect, we may be subject to unfavorable publicity or claims by one or more state attorneys general, federal regulators, or private plaintiffs, any of which could damage our reputation, inhibit sales and adversely affect our business.
Our business could suffer if the jurisdictions in which we operate change the way in which they regulate the internet, including regulations relating to user-generated content and privacy.
Governments may adopt laws and regulations that make it more difficult to operate our business, both domestically and abroad. We are subject to a number of data privacy and internet-related laws and regulations which result in significant compliance burdens. For example, we have settled two claims under the Americans with Disabilities Act (“ADA”) that obligated us to make our websites WCAG 2.0 Level AA compliant for users with visual or other impairments. We are currently in the process of making updates to our website to fulfill this obligation. In addition, some legislators have called for increased regulation of the use of information concerning consumer behavior on the internet, including certain targeted advertising practices. Others have called for changes affecting the immunities afforded to websites that publish user-generated content.
Our business, including our ability to operate and expand internationally, could be adversely affected if legislation or regulations are adopted, interpreted, or implemented in a manner that is inconsistent with our current business practices and that requires changes to these practices or the design of our website, products or features. In particular, the success of our business has depended, and we expect will continue to depend, on our ability to use the content and other information that our users share with us. Therefore, our business could be harmed by any significant change to applicable laws, regulations or industry practices regarding the use or disclosure of the content that our users share through our website and mobile application. Such changes may require us to modify our service offerings and platform features, possibly in a material manner, and may limit our ability to make use of the content and other information that our users generate on our website and mobile application.
Our business and operating results may be harmed if we are deemed responsible for the collection and remittance of state sales taxes or other indirect taxes for suppliers using our order functionality.
We do not collect sales and value-added tax as part of our supplier agreements in the United States or Canada, based on our determination that such tax is not applicable to our platform. Sales and use, value-added, and similar tax laws and rates vary greatly by jurisdiction. We may be deemed responsible for collecting and remitting sales taxes directly to certain states or
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jurisdictions. It is possible that one or more states could seek to impose sales, use or other tax obligations on us with regard to the ordering functionality that we offer our suppliers. These taxes may be applicable to past sales. In addition, the U.S. Supreme Court’s ruling in South Dakota v. Wayfair that a U.S. state may require an online retailer with no in-state property or personnel to collect and remit sales tax on sales to the state’s residents may permit wider enforcement of sales tax collection requirements, which may increase the jurisdictions in which we may be required to collect and/or remit taxes. A successful assertion that we should be collecting additional sales, use or other taxes or remitting such taxes directly to states or other jurisdictions could result in substantial tax liabilities for past sales and additional administrative expenses and increase the cost of our products and solutions, which could harm our business and operating results.
Our international footprint may subject us to potential adverse tax consequences in various jurisdictions.
Our corporate structure and intercompany arrangements, including the manner in which we develop and use our intellectual property and the transfer pricing of our intercompany transactions, subjects us to the tax laws of various jurisdictions, which are subject to interpretation. The taxing authorities of the jurisdictions in which we operate may challenge our methodologies for valuing developed technology or intercompany arrangements, including our transfer pricing, or determine that the manner in which we operate our business does not achieve the intended tax consequences, which could increase our worldwide effective tax rate and harm our financial position and results of operations.
Changes in tax laws or regulations and compliance in multiple jurisdictions may have a material adverse effect on our business, cash flow, financial condition or operating results.
We are subject to the income and transaction related tax laws primarily in the United States and Canada. New income, sales, use or other tax laws, statutes, rules, regulations, or ordinances could be enacted at any time, which could affect the tax treatment of our U.S. and foreign earnings. Any new taxes could adversely affect our domestic and foreign business operations, and our business and financial performance. In addition, existing tax laws, statutes, rules, regulations, or ordinances, such as Section 280E of the Internal Revenue Code (the “Code”), discussed below, could be interpreted, changed, modified or applied adversely to us. Furthermore, changes to the taxation of undistributed foreign earnings could change our future intentions regarding reinvestment of such earnings. The foregoing items could have a material adverse effect on our business, cash flow, financial condition or operating results. For more information see the subsection entitled “— Additional Risks Related to the Cannabis Industry — Cannabis businesses are subject to unfavorable U.S. tax treatment, which reduces our clients’ profitability and could result in decreased demand for our services,” and “ — Additional Risks Related to the Cannabis Industry — Service providers to cannabis businesses may also be subject to unfavorable U.S. tax treatment.”
Requirements as to taxation vary substantially among jurisdictions. Complying with the tax laws of these jurisdictions can be time consuming and expensive and could potentially subject us to penalties and fees in the future if we were to inadvertently fail to comply. If we were to inadvertently fail to comply with applicable tax laws, this could have a material adverse effect on our business, financial condition, and results of operations.
Changes in accounting standards or other factors could negatively impact our future effective tax rate.
Our future effective income tax rate may be affected by such factors as changing interpretation of existing laws or regulations, the impact of accounting for equity-based compensation, the impact of accounting for business combinations, changes in our international organization, and changes in overall levels of income before tax. In addition, in the ordinary course of our global business, there are many intercompany transactions and calculations where income and tax determinations due by jurisdiction is uncertain.
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Additional Risks Related to the Cannabis Industry
Cannabis remains illegal under U.S. federal law and, therefore, strict enforcement of U.S. federal laws regarding cannabis would likely result in our inability to execute our business plan.
Cannabis, other than hemp (defined by federal law as Cannabis sativa L. with a delta-9 THC concentration of not more than 0.3% on a dry weight basis), is a Schedule I controlled substance under the CSA. Even in states or territories that have legalized cannabis to some extent, the cultivation, possession, processing and sale of cannabis all violate the CSA and are punishable by imprisonment, substantial fines and forfeiture. Moreover, individuals and entities may violate federal law if they aid and abet another in violating the CSA, or conspire with another to violate the law, and violating the CSA is a predicate for certain other crimes, including money laundering laws and the Racketeer Influenced and Corrupt Organizations Act. The U.S. Supreme Court has ruled that the federal government has the authority to regulate and criminalize the sale, possession and use of cannabis, even for individual medical purposes, regardless of whether it is legal under state law.
For over nine years, under a policy instituted during President Obama’s administration, the U.S. government has not prioritized the enforcement of those laws against cannabis companies complying with state law and their vendors. On August 29, 2013 former Deputy Attorney General James Michael Cole issued a Memorandum (the “Cole Memo”), which described the criminal enforcement of federal cannabis prohibitions against those complying with state cannabis regulatory systems as an inefficient use of federal investigative and prosecutorial resources. The Cole Memo gave federal prosecutors discretion not to prosecute state law compliant cannabis companies in states that were regulating cannabis, unless one or more of eight federal priorities were implicated, including use of cannabis by minors, violence, or the use of federal lands for cultivation. On January 4, 2018, then U.S. Attorney General Jeff Sessions issued a memorandum for all U.S. Attorneys (the “Sessions Memo”) rescinding the Cole Memo. The Sessions Memo, which remains in effect, states that each U.S. Attorney’s Office should follow established principles that govern all federal prosecutions when deciding which cannabis activities to prosecute. As a result, federal prosecutors could and still can use their prosecutorial discretion to decide to prosecute even state-legal cannabis activities. Since the Sessions Memo was issued nearly five years ago, however, U.S. Attorneys have generally not prioritized the targeting of state law compliant entities. We cannot assure that each U.S. Attorney’s Office in each judicial district where we operate will not choose to enforce federal laws governing cannabis sales against state-legal companies such as our business suppliers.
Since 2014, versions of U.S. Omnibus Spending bill have included a provision prohibiting the Department of Justice (“DOJ”), which includes the Drug Enforcement Administration, from using appropriated funds to prevent states from implementing their medical-use cannabis laws. In USA v. McIntosh, the U.S. Court of Appeals for the Ninth Circuit held that the provision prohibits the DOJ from spending funds to prosecute individuals who engage in conduct permitted by state medical-use cannabis laws and who strictly comply with such laws. The court noted that, if the spending bill provision were not continued, prosecutors could enforce against conduct occurring during the statute of limitations even while the provision was previously in force. Other courts that have considered the issue have ruled similarly, although courts disagree about which party bears the burden of proof of showing compliance or noncompliance with state law. Our policies do not prohibit our state-licensed cannabis retailers from engaging in the cannabis business for adult use that is permissible under state and local laws. Consequently, certain of our retailers currently (and may in the future) sell adult-use cannabis, if permitted by such state and local laws now or in the future, and therefore may be outside any protections extended to medical-use cannabis under the spending bill provision. This could subject our suppliers to greater and/or different federal legal and other risks as compared to businesses where cannabis is sold exclusively for medical use, which could in turn materially adversely affect our business. Furthermore, any change in the federal government’s enforcement posture with respect to state-licensed cannabis sales, including the enforcement postures of individual federal prosecutors in judicial districts where we operate, could result in our inability to execute our business plan, and we would likely suffer significant losses with respect to our supplier base, which would adversely affect our operations, cash flow and financial condition.
Although the U.S. Attorney General could issue policy guidance to federal prosecutors that they should not interfere with cannabis businesses operating in compliance with states’ laws, any such guidance would not have the force of law, and could not be enforced by the courts. The President alone cannot legalize medical cannabis, and as states have demonstrated,
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legalizing medical cannabis can take many different forms. While rescheduling cannabis would ease certain research restrictions and rescheduling below Schedule II would make Code section 280E inapplicable, it would not make the state medical or adult-use programs federally legal.
During his confirmation hearing, current Attorney General Merrick Garland stated that he did not see enforcement of federal cannabis law as a high priority use of resources for the DOJ: “This is a question of the prioritization of our resources and prosecutorial discretion. It does not seem to me a useful use of limited resources that we have, to be pursuing prosecutions in states that have legalized and that are regulating the use of marijuana, either medically or otherwise. I don’t think that’s a useful use. I do think we need to be sure there are no end-runs around the state laws that criminal enterprises are doing. So that kind of enforcement should be continued. But I don’t think it’s a good use of our resources, where states have already authorized. That only confuses people, obviously, within the state.” While the statement is not a promise to avoid federal interference with state cannabis laws, it does signal that the enforcement priorities of DOJ lie elsewhere. In fact, President Biden’s Justice Department has taken a hands-off approach to enforcement of federal marijuana laws, and the President himself initiated a scheduling review of marijuana in late 2022 and announced a pardon of all prior federal offenses for simple marijuana possession.
While some industry observers are hopeful that various legislative proposals previously introduced in Congress will increase the chances of federal cannabis policy reform, we cannot provide assurances about the content, timing or chances of passage of a bill legalizing cannabis or liberalizing cannabis regulations. Accordingly, we cannot predict the timing of any change in federal law or possible changes in federal enforcement. In the event that the federal government were to reverse its long-standing hands-off approach to the state-legal cannabis markets and start more broadly enforcing federal law regarding cannabis, we would likely be unable to execute our business plan, and our business and financial results would be adversely affected.
Our business and our suppliers are subject to a variety of U.S. and foreign laws regarding financial transactions related to cannabis, which could subject our suppliers to legal claims or otherwise adversely affect our business.
We and our suppliers are subject to a variety of laws and regulations in the United States, Canada, and elsewhere that prohibit money laundering, including the Money Laundering Control Act (United States), as amended, and the Proceeds of Crime and Terrorist Financing Act (Canada), and the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by governmental authorities in the United States, Canada or any other jurisdiction in which we have business operations. Violations of the U.S. anti-money laundering laws require the government to confiscate proceeds from enumerated criminal activity, which includes trafficking in cannabis in violation of the CSA. Although we believe that none of our activities implicate the aforementioned money laundering statutes, largely because we believe there is no underlying CSA offense, in the event that any of our business activities, any dividends or distributions therefrom, or any profits or revenues accruing thereby are found to be in violation of money laundering statutes, such transactions may be viewed as proceeds of crime under one or more of the statutes noted above or any other applicable legislation, and any persons, including such U.S. based investors, found to be aiding and abetting us in such violations could be subject to liability. Any violations of these laws, or allegations of such violations, could disrupt our operations, involve significant management distraction and involve significant costs and expenses, including legal fees. We could also suffer significant penalties, including criminal and civil penalties, disgorgement and other remedial measures.
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Our operations may be negatively affected by the way other private companies interpret laws and regulations applicable to the cannabis industry, or their policies and practices with respect to the cannabis industry.
In most jurisdictions which legalized cannabis for adult or medical use, the cannabis industry is subject to a complex and comprehensive set of laws and regulations. Many entities that do business with consumers or suppliers in the cannabis industry institute internal or supplier-facing policies that limit or restrict how they do business with these suppliers, or take steps to verify that their suppliers in the cannabis industry operate in compliance with applicable laws. For example, some financial institutions that service cannabis retailers screen their clients’ advertising for compliance with restrictions on cannabis advertising. Some financial institutions have interpreted editorial information that Leafly appends to some product pages within dispensary menus as advertising by those cannabis retailers, and instructed the suppliers to remove such advertising. Some mass media outlets have refused to publish advertisements for Leafly on the basis of perceived risk. The manner in which other companies interpret laws and regulations applicable to the cannabis industry, and the policies they institute as a result may adversely affect our suppliers’ operations, which in turn could harm our results of operations.
We are dependent on our banking relationships, and due to our connection with the cannabis industry, we may have difficulty accessing or consistently maintaining banking or other financial services.
Although we do not grow or sell cannabis products, our general connection with the cannabis industry may hamper our efforts to do business or establish collaborative relationships with others that may fear disruption or increased regulatory scrutiny of their own activities.
We are dependent on the banking industry to support the financial functions of our services and advertising solutions. Our business operating functions including payroll for our employees, real estate leases, and other expenses are reliant on traditional banking. Additionally, many of our suppliers pay us via wire transfer to our bank accounts, or via checks that we deposit into our bank accounts. We require access to banking services for both us and our suppliers to receive payments in a timely manner. Lastly, to the extent we rely on any lines of credit, these could be affected by our relationships with financial institutions and could be jeopardized if we lose access to a bank account. Important components of our offerings depend on supplier accounts and relationships, which in turn depend on banking functions. Most federal and federally-insured state banks currently do not serve businesses that grow and sell cannabis products on the stated ground that growing and selling cannabis is illegal under federal law, even though the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued guidelines to banks in February 2014 that clarified how financial institutions can provide services to cannabis-related businesses, consistent with financial institutions’ obligations under the Bank Secrecy Act. While the federal government has generally not initiated financial crimes prosecutions against state-law compliant cannabis companies or their vendors, the government has the ability to do so, at minimum against companies in the adult-use markets. The continued uncertainty surrounding financial transactions related to cannabis activities and the subsequent risks this uncertainty presents to financial institutions may result in their discontinuing services to the cannabis industry or limit their ability to provide services to the cannabis industry or ancillary businesses providing services to the cannabis industry.
As a result of federal-level illegality and the risk that providing services to state-licensed cannabis businesses poses to banks, cannabis-related businesses face difficulties accessing banks that will provide services to them. When cannabis businesses are able to find a bank that will provide services, they face extensive client due diligence in light of complex state regulatory requirements and guidance from FinCEN, and these reviews may be time-consuming and costly, potentially creating additional barriers to financial services for, and imposing additional compliance requirements on, us and our suppliers. FinCEN requires a party in trade or business to file with the U.S. Internal Revenue Service (the “IRS”), a Form 8300 report within 15 days of receiving a cash payment of over $10,000. While we receive very few cash payments for the products we sell, if we fail to comply with these laws and regulations, the imposition of a substantial penalty could have a material adverse effect on our business, results of operations and financial condition. We cannot ensure that our strategies and techniques for designing our platform features and services, including our advertising solutions, for our suppliers will operate effectively and efficiently and not be adversely impacted by any refusal or reluctance of banks to serve businesses that grow and sell cannabis products. A change in banking regulations or a change in the position of the banking industry that permits banks to serve businesses that grow and sell cannabis products may increase competition for us, facilitate new entrants into the industry
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offering platform features and services similar to those that we offer, or otherwise adversely affect our results of operations. Also, the inability of potential suppliers in our target market to open accounts and otherwise use the services of banks or other financial institutions may make it difficult for us to conduct business, including receiving payments in a timely manner.
We do not sell cannabis, or products that contain cannabis; accordingly, our company is not part of the cannabis industry that would be restricted from using federal and federally insured banks. However, because our revenue is generated largely from companies licensed as operators in the cannabis industry, banks have and may continue to consider us to be part of the cannabis industry that is subject to banking restrictions. If we were to lose any of our banking relationships or fail to secure additional banking relationships in the future, we could experience difficulty and incur increased costs in the administration of our business, paying our employees, and accepting payments from suppliers, each of which may adversely affect our reputation or results of operations. Additionally, the closure of many or one of our bank accounts due to a bank’s reluctance to provide services to a business working with state-legal cannabis businesses would require significant management attention from us and could materially adversely affect our business and operations. In addition to banks and financial institutions, merchant processors may take a similar view of the risks of working with us since we provide services to cannabis businesses, and loss of any of our merchant processor relationships could have similar results. Moreover, Visa and Mastercard reportedly prohibit processing of transactions involving cannabis on its network. Although U.S. consumers cannot purchase products on our listings marketplace and we do not currently use, nor have we historically used, any of our merchant processing relationships to process payments for cannabis transactions, to the extent Visa or Mastercard restrict cannabis-related transactions, our merchant processing relationships could be terminated, or we could be prevented from processing any Visa or Mastercard transactions, which could have a material adverse effect on our business and results of operations.
The continuing proliferation of unlicensed and illicit cannabis operations may negatively affect our suppliers and our operations.
We exclusively offer our services for suppliers licensed under applicable state cannabis laws. Even in those states which have legalized cannabis for medical or adult use, unlicensed and illicit cannabis operations may continue to operate and compete against licensed businesses. This illicit competition may adversely affect our suppliers’ operations, which in turn could harm our results of operations.
We may have difficulty using bankruptcy courts due to our involvement in the regulated cannabis industry.
We currently have no need or plans to seek bankruptcy protection. U.S. courts have held that debtors whose income is derived from cannabis or cannabis assets in violation of the CSA cannot seek federal bankruptcy protections. Although we are not in the business of growing or processing cannabis or selling or even possessing cannabis or cannabis products, a U.S. court could determine that our revenue is derived from cannabis or cannabis assets and prevent us from obtaining bankruptcy protections if necessary.
The conduct of third parties may jeopardize our business.
We cannot guarantee that our systems, protocols, and practices will prevent all unauthorized or illegal activities by our suppliers. Our success depends in part on our suppliers’ ability to operate consistently with the regulatory and licensing requirements of each state, local, and regional jurisdiction in which they operate. We have a dedicated catalog and compliance team that reviews cannabis license information for operational cannabis suppliers, both on submission and on an ongoing basis, to ensure validity and accuracy. We require all operational cannabis suppliers, including storefronts and delivery services, to provide a valid, unexpired state-issued license number before accepting their listings or advertisements on our platform. For certain of our products or services, we request additional verification and documentation. We cannot ensure that the conduct of our suppliers, who are third parties, and their actions could expose them to legal sanctions and costs, which would in turn, adversely affect our business and operations.
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The conduct of third parties may jeopardize our regulatory compliance.
While we are a technology company, not a cannabis licensee, and as such, are not subject to commercial cannabis regulations that apply to cannabis operators, we cannot guarantee that our systems, protocols, and practices will prevent any and all unauthorized or illegal activities by our suppliers. Our success depends in part on our suppliers’ ability to operate consistently with the regulatory and licensing requirements of each state, local, and regional jurisdiction in which they operate. Despite the procedures and protocols in place for license verification by our catalog and compliance team, any non-compliance by our suppliers could put our business at risk, as discussed herein, and could also subject us to potential actions by state regulators, to the extent they could be applied to technology service providers, which could materially adversely affect our business, operations, financial condition, brand, and reputation.
We believe that Section 230(c)(1) of the Communications Decency Act (the “CDA”) provides immunity from civil and state criminal liability, but it is possible that it does not.
We believe that Section 230(c)(1) of the CDA provides immunity from civil and state criminal liability to providers of interactive computer services in the United States, such as us, for content provided on their platforms that they did not create or develop. Section 230 does not provide any protections against federal criminal liability, such as prosecutions under the CSA. We do not create or develop the information that appears on our suppliers’ listing pages and advertising placements, although our internal teams may take down a supplier’s information if it breaches our listing restrictions or admonish consumers who post reviews that violate our community terms of use (which, for example, prohibit profanity and racism). We do author and edit certain original content that appears in other sections of our placements, although our internal teams may take down a supplier’s information if it breaches our listing restrictions or admonish consumers who post reviews that violate our community terms of use (which, for example, prohibit profanity and racism). We do author and edit certain original content that appears in other sections of our site, such as Strains, Learn, News, and Cannabis 101. All of these sections are general news and information, and none of these sections are advertisements for, or listing pages of, cannabis businesses. For additional information about Section 230 of the CDA, see the section entitled “— Risks Relating to Our Business and Industry.” Our suppliers are subject to licensing and related requirements under applicable laws and regulations, and our own compliance policies, and some of our suppliers currently and in the future may not be in compliance with all such requirements. Despite our belief that we are protected by Section 230 of the CDA, it is possible that we are not, which would subject us to legal, business, and operational risks. In addition, there have been various Congressional efforts to restrict the scope of the protections available to online platforms under Section 230 of the CDA, and our current protections from liability for third-party content in the United States could decrease or change. We could incur significant costs investigating and defending such claims and, if we are found liable, significant damages. We could also face fines or orders restricting or blocking our services in particular geographies as a result of content hosted on our services. For example, recently enacted legislation in Germany may impose significant fines for failure to comply with certain content removal and disclosure obligations.
We may continue to be subject to constraints on marketing our products.
Certain states in which we operate have enacted strict regulations regarding marketing and sales activities of cannabis products, including certain state restrictions on the use of our online order reservation platform, which could affect our cannabis retail suppliers’ demand for our listing and marketing services. There may be restrictions on sales and marketing activities of cannabis businesses imposed by government regulatory bodies that can hinder the development of our business and operating results because of the restrictions our suppliers face. If our suppliers are unable to effectively use our products and compete for market share, or if the costs of compliance with government legislation and regulation cannot be absorbed by our suppliers, this could hamper demand for our products and services from licensed cannabis retailers, which could result in a loss of revenue.
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Cannabis businesses are subject to unfavorable U.S. tax treatment, which reduces our clients’ profitability and could result in decreased demand for our services.
Section 280E of the Code does not allow any deduction or credit for any amount paid or incurred during the taxable year in carrying on business, other than costs of goods sold, if the business (or the activities which comprise the trade or business) consists of trafficking in controlled substances (within the meaning of Schedules I and II of the CSA). The IRS has applied this provision to cannabis operations, prohibiting them from deducting expenses associated with cannabis businesses beyond costs of goods sold and asserting assessments and penalties for additional taxes owed. Section 280E of the Code may have a lesser impact on cannabis cultivation and manufacturing operations than on sales operations, which directly affects our suppliers, who are cannabis retailers and brands. However, Section 280E of the Code and related IRS enforcement activity have had a significant impact on the operations of all cannabis companies. While the Section does not directly affect our Company, it lowers our suppliers’ profitability, and could result in decreased demand or higher price sensitivity for our listing and marketing services. An otherwise profitable cannabis business may operate at a loss after taking into account its U.S. income tax expenses. This affects us because our sales and operating results could be adversely affected if our suppliers decrease their marketing budgets and are operating on lower profit margins as a result of unfavorable treatment by the Code.
Service providers to cannabis businesses may also be subject to unfavorable U.S. tax treatment.
As discussed above, under Section 280E of the Code, no deduction or credit is allowed for any amount paid or incurred during the taxable year in carrying on business, other than costs of goods sold, if the business (or the activities which comprise the trade or business) consists of trafficking in controlled substances (within the meaning of Schedules I and II of the CSA). The IRS has applied this provision to cannabis operations, prohibiting them from deducting expenses associated with cannabis businesses and asserting assessments and penalties for additional taxes owed. While we believe that Section 280E of the Code does not apply to our business, or ancillary service providers that work with state-licensed cannabis businesses, if the IRS interprets the Section to apply, it would significantly and materially affect our profitability and financial condition.
Cannabis businesses may be subject to civil asset forfeiture.
Any property owned by participants in the cannabis industry used in the course of conducting such business, or that represents proceeds of such business or is traceable to proceeds of such business, could be subject to seizure by federal law enforcement and subsequent civil asset forfeiture because of the illegality of the cannabis industry under federal law. Even if the owner of the property is never charged with a crime, the property in question could still be seized and subject to an administrative proceeding by which, with minimal due process, it could be subject to forfeiture. Forfeiture of assets of our cannabis business clients could adversely affect our revenues if it impedes their profitability or operations and our suppliers’ ability to continue to subscribe to our services.
Due to our involvement in the cannabis industry, we may have a difficult time obtaining the various insurances that are desired to operate our business, which may expose us to additional risk and financial liability.
Insurance that is otherwise readily available, such as general liability and directors’ and officers’ insurance, is more difficult for us to find and is more expensive or contains significant exclusions because our suppliers are cannabis industry participants. There are no guarantees that we will be able to find such insurance coverage in the future or that the cost will be affordable to us. If we are forced to go without such insurance coverage, it may prevent us from entering into certain business sectors, may inhibit our growth, may limit our ability to attract directors and officers and may expose us to additional risk and financial liabilities. If we experience an uninsured loss, it may result in loss of anticipated cash flow and could materially adversely affect our results of operations, financial condition, and business.
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There may be difficulty enforcing certain of our commercial agreements and contracts.
Courts will not enforce a contract deemed to involve a violation of law or public policy. Because cannabis remains illegal under U.S. federal law, parties to contracts involving the state-legal cannabis industry have argued that the agreement was void as federally illegal or against public policy. Some courts have accepted this argument in certain cases, usually with adverse results for cannabis companies. While courts have enforced contracts related to activities by state-legal cannabis companies, and the trend is generally to enforce contracts with state-legal cannabis companies and their vendors, there remains doubt and uncertainty that we will be able to enforce our commercial agreements in court for this reason. We cannot be assured that we will have a remedy for breach of contract, which would have a material adverse effect on our business.
Certain of our directors, officers, employees and investors who are not U.S. citizens may face constraints on cross-border travel into the United States.
Because cannabis remains illegal under U.S. federal law, non-U.S. citizens employed at or investing in companies doing business in the state-legal cannabis industry could face detention, denial of entry or lifetime bans from the United States for their business associations with cannabis businesses. Entry to the United States for non-citizens happens at the sole discretion of the officers on duty of the U.S. Customs and Border Protection (the “CBP”), and these officers have wide latitude to ask questions to determine the admissibility of a foreign national. The government of Canada has started warning travelers on its website that previous use of cannabis, or any substance prohibited by U.S. federal laws, could mean denial of entry to the United States. CBP has taken the position that business or financial involvement in the legal cannabis industry in Canada or in the United States is grounds for U.S. border guards to deny entry. On September 21, 2018, CBP released a statement outlining its current position with respect to enforcement of the laws of the United States. It stated that Canada’s legalization of cannabis will not change CBP enforcement of U.S. laws regarding controlled substances and because cannabis continues to be a controlled substance under U.S. federal law, working in or facilitating the proliferation of the legal marijuana industry in U.S. states where it is deemed legal or in Canada may affect admissibility to the United States. CBP updated its stated policy on October 9, 2018 to clarify that a Canadian citizen coming to the United States for reasons unrelated to the cannabis industry will generally be admissible to the United States.
Risks Related to Our Intellectual Property
We are, and may in the future be, subject to disputes and assertions by third parties that we violate their intellectual property rights. These disputes may be costly to defend and could harm our business and operating results.
We currently face, and we expect to face from time to time in the future, allegations that we have violated the rights of third parties, including patent, trademark, copyright and other intellectual property rights. For example, third parties have claimed that we have allegedly violated their trademark rights solely due to our display of third party products bearing an allegedly infringing mark. In the past, we have successfully resolved such claims without litigation.
Other claims against us can be expected to be made in the future. Even if the claims are without merit, the costs associated with defending these types of claims may be substantial, both in terms of time, money, and diversion of management attention. In particular, patent and other intellectual property litigation may be protracted and expensive, and the results are difficult to predict and may require us to stop using certain trademarks, discontinue offering certain features, purchase licenses or modify our services and platform features while we develop non-infringing substitutes or may result in significant settlement costs. Though we have several pending patent applications and two issued U.S. patents, we may be unable to deter competitors or others from pursuing patent or other intellectual property infringement claims against us.
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The results of litigation and claims to which we may be subject cannot be predicted with certainty. Even if these matters do not result in litigation or are resolved in our favor or without significant cash settlements, these matters, and the time and resources necessary to litigate or resolve them, could harm our business, results or operations and reputation.
Some of our solutions contain open source software, which may pose particular risks to our proprietary software and solutions.
We use open source software that we have obtained from third parties or is included in software packages in our solutions and will use open source software in the future. Open source software is generally freely accessible, usable and modifiable, and is made available to the general public on an “as-is” basis under the terms of a non-negotiable license. From time to time, we may face claims from third parties claiming ownership of, or demanding release of, the open source software and/or derivative works that we developed using such software (which could include our proprietary source code), or otherwise seeking to enforce the terms of the applicable open source license. These claims could result in litigation and could require us to purchase a costly license or cease offering the implicated solutions unless and until we can re-engineer them to avoid infringement. This re-engineering process could require significant additional research and development resources. In addition to risks related to license requirements, use of certain open source software can lead to greater risks than use of third party commercial software, as open source licensors generally do not provide warranties or controls on the origin of software. Any of these risks could be difficult to eliminate or manage, and, if not addressed, could have a negative effect on our business and operating results.
Failure to protect or enforce our intellectual property rights could harm our brand, business and results of operations.
We seek to protect our trademarks, the source code for our proprietary software, domain names, and other proprietary information under a combination of patent law, trade secrets, copyrights, and trademark law to the extent we determine they are appropriate and cost-effective. We regard the protection of our pending patents, trade secrets, copyrights, trademarks and domain names as critical to our success. In particular, we must maintain, protect and enhance the “Leafly” brand. We pursue the registration of our domain names and core trademarks in the United States and in certain jurisdictions abroad. We strive to protect our intellectual property rights by relying on federal, state and common law rights, as well as contractual restrictions. Federal, state and/or local laws may limit or define the nature of permitted goods and services for which we can seek trademark registration. We typically enter into confidentiality and invention assignment agreements with our employees and contractors, and confidentiality agreements with parties with whom we conduct business in order to limit access to, and disclosure and use of, our proprietary information. However, these contractual arrangements and the other steps we have taken to protect our intellectual property may not prevent the misappropriation or disclosure of our proprietary information nor deter independent development of similar technologies by others.
Effective patent, trade secret, copyright, trademark and domain name protection is expensive to develop and maintain, both in terms of initial and ongoing registration requirements and expenses and the costs of defending our rights. Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to copy aspects of our software or to obtain and use information that we regard as proprietary. Policing unauthorized use of our software is difficult, and we are unable to determine the extent to which piracy of our software exists or will occur in the future. Litigation may be necessary in the future to enforce our intellectual property rights, protect our trade secrets, determine the validity and scope of the proprietary rights of others or defend against claims of infringement or invalidity. Any litigation of this nature, regardless of outcome or merit, could result in substantial costs and diversion of management and technical resources, any of which could adversely affect our business and operating results. Furthermore, our efforts to enforce our intellectual property rights may be met with defenses, counterclaims and countersuits attacking the validity and enforceability of our intellectual property rights or alleging that we infringe the counterclaimant’s own intellectual property. These steps may be inadequate to protect our intellectual property. Third parties may challenge the validity or ownership of our intellectual property, and these challenges could cause us to lose our rights, in whole or in part, to such intellectual property or narrow its scope such that it no longer provides meaningful protection. We will not be able to protect our intellectual property if we are unable to enforce our rights or if we do not detect unauthorized use of our intellectual property. Despite our precautions, it may be possible for unauthorized third parties to copy our services and platform features and use information that we regard as proprietary to
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create services and platform features that compete with ours. Some of our terms of use provisions protecting against unauthorized use, copying, transfer and disclosure of our applications may be unenforceable under the laws of certain jurisdictions and foreign countries. Further, the laws of some countries do not protect proprietary rights to the same extent as the laws of the United States. To the extent we expand our international activities, our exposure to unauthorized copying, transfer and use of our brand, software, and proprietary technology or information may increase.
There can be no assurance that our means of protecting our proprietary rights will be adequate or that our competitors will not independently develop similar technology. If we fail to meaningfully protect our intellectual property, our business, brands, operating results and financial condition may be harmed.
We may be unable to continue to use our existing domain names, or prevent third parties from acquiring and using domain names that infringe on, are similar to, or otherwise decrease the value of our brand or our trademarks or service marks.
We have registered domain names for websites that we use in our business, such as Leafly.com. If we lose the ability to use a domain name, whether due to trademark claims, failure to renew the applicable registration, or any other cause, we may be forced to market our products under a new domain name, which could cause us substantial harm, or to incur significant expense in order to purchase rights to the domain name in question. In addition, our competitors and others could attempt to capitalize on our brand recognition by using domain names similar to ours. Domain names similar to ours have been registered by third parties in the United States and elsewhere. We may be unable to prevent third parties from acquiring and using domain names that infringe on, are similar to, or otherwise decrease the value of our brand or our trademarks or service marks. Protecting and enforcing our rights in our domain names may require litigation, which could result in substantial costs and diversion of management’s attention.
Public Company and Financial Reporting Risks
Our shares of common stock are listed on Nasdaq, but we cannot guarantee that we will be able to satisfy the applicable listing standards going forward.
The Nasdaq Stock Market LLC (“Nasdaq”) requires listed companies to comply with certain standards in order to remain listed. On October 28, 2022, Leafly received a letter from the Nasdaq staff providing notification that, for the previous 30 consecutive business days, the minimum market value of Leafly’s listed securities had closed below the $50 million minimum market value requirement for continued listing under Nasdaq Listing Rule 5450(b)(2)(A). This letter notified the Company that it also does not comply with either of the two alternative standards of Listing Rule 5450(b), the equity standard and the total assets and total revenue standard. On November 2, 2022, Leafly received another letter from the Nasdaq staff providing notification that, for the previous 30 consecutive business days, the bid price for Leafly’s common stock had closed below the $1.00 per share minimum bid price requirement for continued listing under Nasdaq Listing Rule 5450(a)(1). The notices had no immediate effect on the listing of the Company’s common stock, and its common stock and warrants have continued to trade on the Nasdaq Global Market.
In accordance with Nasdaq Listing Rule 5810(c)(3)(C), the Company has been provided an initial period of 180 calendar days, or until April 26, 2023, to regain compliance with the minimum market value of listed securities requirement. To regain compliance, the market value of the Company’s common stock must be $50 million or more for a minimum of 10 consecutive business days at any time before April 26, 2023 and we must otherwise satisfy the Nasdaq Global Market’s requirements for continued listing. In accordance with Nasdaq Listing Rule 5810(c)(3)(A), the Company has been provided an initial period of 180 calendar days, or until May 1, 2023, to regain compliance with the minimum bid price requirement. To regain compliance, the closing bid price of the Company’s common stock must be $1.00 per share or more for a minimum of 10 consecutive business days at any time before May 1, 2023 and we must otherwise satisfy the Nasdaq Global Market’s requirements for continued listing.
If the Company does not regain compliance with the minimum market value requirement by April 26, 2023, the Company may be eligible to transfer the listing for its common stock to the Nasdaq Capital Market. To qualify, the Company would
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be required to meet the continued listing requirements for the Nasdaq Capital Market. The Company intends to apply to transfer its listing to the Nasdaq Capital Market before April 26, 2023. If approved, such transfer would resolve the minimum market value deficiency, however, there can be no assurance Nasdaq staff would grant the Company’s application. It is unlikely that the Company will regain compliance with the minimum bid price requirement by May 1, 2023. In order to be eligible for a second 180-day compliance period during which to cure the minimum bid price requirement, the Company would need to have its listing transferred to the Nasdaq Capital Market and meet the continued listing requirement for market value of publicly held shares and all other initial listing standards (including $4 million in stockholders’ equity) for the Nasdaq Capital Market, with the exception of the minimum bid price requirement. We believe the Company will not have $4 million in stockholders’ equity by May 1, 2023, and therefore will not qualify for a second compliance period.
If the Company is not approved to transfer the listing for its common stock to the Nasdaq Capital Market by April 26, 2023 or does not cure the minimum bid price deficiency by the May 1, 2023 deadline, Nasdaq will thereafter notify the Company that its securities would be subject to delisting. In the event of such a notification, the Company intends to appeal the staff’s determination to delist its securities, and in support of such appeal, intends to submit a detailed action plan to cure the minimum bid price deficiency within 180 calendar days of Nasdaq’s delisting notification by effecting a reverse stock split, if necessary. We understand that the Nasdaq appeals panel routinely grants additional time (up to 180 days) for a company to cure a bid price deficiency when the compliance plan demonstrates, like we expect our plan will, that the company will cure a bid price issue through a reverse stock split within 180-days of a delisting notice. There can be no assurances any appeal we may need to make will be granted, and if not granted, we believe Leafly would be delisted from Nasdaq.
Delisting from the Nasdaq Global Market or any Nasdaq market could make trading our common stock more difficult for investors, potentially leading to declines in our share price and liquidity. In addition, without a Nasdaq market listing, stockholders may have a difficult time getting a quote for the sale or purchase of our stock, the sale or purchase of our stock would likely be made more difficult and the trading volume and liquidity of our stock could decline. Delisting from Nasdaq could also result in negative publicity and make it more difficult for us to raise additional capital. The absence of such a listing may adversely affect the acceptance of our common stock as transaction consideration or the value accorded our common stock by other parties. Further, if we are delisted, we would also incur additional costs under state blue sky laws in connection with any sales of our securities. These requirements could severely limit the market liquidity of our common stock and the ability of our stockholders to sell our common stock in the secondary market. We cannot assure you that our common stock, if delisted from Nasdaq, will be listed on another national securities exchange or quoted on an over-the counter quotation system. If our common stock is delisted, it may come within the definition of “penny stock” as defined in the Exchange Act and would be covered by Rule 15g-9 of the Exchange Act. That Rule imposes additional sales practice requirements on broker-dealers who sell securities to persons other than established customers and accredited investors.
We will continue to incur increased costs and obligations as a result of being a public company.
As a publicly traded company, we are incurring and will continue to incur significant legal, accounting and other expenses that we were not required to incur in the recent past, particularly after we are no longer an “emerging growth company” as defined under the JOBS Act (as defined below). In addition, new and changing laws, regulations and standards relating to corporate governance and public disclosure, including the Dodd Frank Wall Street Reform and Consumer Protection Act and the rules and regulations promulgated and to be promulgated thereunder, as well as under the Sarbanes-Oxley Act, the JOBS Act, and the rules and regulations of the SEC and national securities exchanges have created uncertainty for public companies and increased the costs and the time that our board of directors and management must devote to complying with these rules and regulations. We expect these rules and regulations to increase our legal and financial compliance costs and lead to a diversion of management time and attention from revenue generating activities.
Furthermore, the need to establish the corporate infrastructure required of a public company may divert management’s attention from implementing our growth strategy, which could prevent us from improving our business, results of operations and financial condition. We have made, and will continue to make, changes to our internal controls and procedures for financial reporting and accounting systems to meet our reporting obligations as a publicly traded company. However, the measures we take may not be sufficient to satisfy our obligations as a publicly traded company.
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The requirements of being a public company may strain our resources, divert management’s attention and affect our ability to attract and retain qualified board members.
As a public company, we are required to comply with certain SEC, Nasdaq and other legal or regulatory requirements. In particular, we are subject to the reporting requirements of the Exchange Act, the Sarbanes-Oxley Act and any rules promulgated thereunder, as well as the rules of Nasdaq. The requirements of these laws, regulations and rules, including new and changing laws, regulations and rules relating to corporate governance and public disclosure, increase our legal and financial compliance costs, make some activities more difficult, time-consuming or costly and increase demand on our systems and resources. Those laws, regulations or rules and their interpretation and application may also change from time to time and those changes could have a material adverse effect on our business, investments and results of operations. In addition, a failure to comply with applicable laws, regulations or rules, as interpreted and applied, could have a material adverse effect on our business and results of operations.
The Sarbanes-Oxley Act requires, among other things, that we maintain effective disclosure controls and procedures and internal controls for financial reporting. In order to maintain and, if required, improve our disclosure controls and procedures and internal control over financial reporting to meet this standard, significant resources and management oversight are required, and, as a result, management’s attention may be diverted from other business concerns. These rules and regulations can also make it more difficult for us to attract and retain qualified independent members of our board of directors. Additionally, these rules and regulations make it more difficult and more expensive for us to obtain director and officer liability insurance. We may be required to accept reduced coverage or incur substantially higher costs to obtain coverage. The increased costs of compliance with public company reporting requirements and our potential failure to satisfy these requirements could have a material adverse effect on our operations, business, financial condition or results of operations.
If we fail to establish and maintain proper and effective internal control over financial reporting or otherwise fail to establish and maintain an effective system of controls, our ability to produce accurate and timely financial statements could be impaired, investors may lose confidence in our financial reporting, the trading price of our common stock could decline, and we could be subject to heightened regulatory scrutiny.
The Sarbanes-Oxley Act requires, among other things, that we maintain effective disclosure controls and procedures and internal controls for financial reporting. In 2022, we began our implementation of Sarbanes-Oxley and continue to assess and further develop our internal controls and procedures. In order to maintain and, if required, improve our disclosure controls and procedures and internal control over financial reporting to meet the applicable regulatory standards, significant resources and management oversight are required. To comply with the Sarbanes-Oxley Act, the requirements of being a reporting company under the Exchange Act and any complex accounting rules in the future, we will continue to make upgrades to our information technology systems, implement additional financial and management controls, reporting systems and procedures, and hire additional accounting and finance staff. We also continue to engage outside consultants to assist in complying with these requirements.
Our management does not expect that our disclosure controls and procedures and internal controls over financial reporting will prevent all potential errors and fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. For example, in 2020, prior to becoming a public company, a material weakness was identified in our internal controls over financial reporting, which was fully remediated in 2021. The actions we took remediated the material weakness and strengthened our internal control over financial reporting; however, there can be no guarantee that we will not experience flaws in our internal controls and procedures in the future. The effectiveness of our internal control over financial reporting is subject to various inherent limitations, including cost limitations, judgments used in decision making, assumptions about the likelihood of future events, the possibility of human error, and the risk of fraud. We cannot assure you that the measures we have taken to date and may take in the future will be sufficient to prevent or avoid potential future material weaknesses.
We are required to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting. Once we no longer qualify as an “emerging growth company,” an attestation of the independent registered
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public accounting firm will also be required. The rules governing the standards that must be met for management to assess internal control over financial reporting are complex and require significant documentation, testing and possible remediation. It is possible that control deficiencies could be identified by our management or by our independent registered public accounting firm in the future or may occur without being identified.
Any failure to maintain an adequate system of internal controls and internal control over financial reporting could severely inhibit our ability to accurately report our financial condition, results of operations or cash flows. Such a failure could result in regulatory scrutiny by Nasdaq, the SEC or other regulatory authorities, cause investors to lose confidence in our reported financial results, cause the market price of our common stock to decline, lead to a default under our current or future indebtedness and otherwise have a material adverse effect on our business, financial condition, cash flows, or results of operations. Failure to remedy any material weakness in our internal control over financial reporting, or to implement or maintain other effective control systems required of public companies, could also restrict our future access to the capital markets.
Our projections are subject to significant risks, assumptions, estimates and uncertainties. As a result, our actual revenues, market share, expenses and profitability may differ materially from our expectations.
We operate in a rapidly changing and competitive industry and our projections will be subject to the risks and assumptions made by management with respect to our industry and business. Operating results are difficult to forecast because they generally depend on a number of factors, including the competition we face, and our ability to attract and retain customers, deliver new products and services and expand market share. Additionally, our business may be affected by reductions in trading activity, loss of customers, lack of new products, competition, regulation and a number of factors which may be difficult to predict. This may result in decreased revenue levels, and we may be unable to adopt measures in a timely manner to compensate for any unexpected shortfall in income. This inability could cause our operating results in a given quarter to be higher or lower than expected. These factors make creating accurate forecasts and budgets challenging and, as a result, we may fall materially short of our forecasts and expectations, which could cause our stock price to decline and investors to lose confidence in us.
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Risks Relating to Ownership of our Common Stock
We qualify as an “emerging growth company” and “smaller reporting company” within the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to emerging growth companies, it could make our securities less attractive to investors and may make it more difficult to compare our performance to the performance of other public companies.
We qualify as an “emerging growth company” as defined in Section 2(a)(19) of the Securities Act, as modified by the JOBS Act, as of the closing of the Business Combination. As such, we are eligible for and intend to take advantage of certain exemptions from various reporting requirements applicable to other public companies that are not emerging growth companies for as long as we continue to be an emerging growth company, including, but not limited to, (a) not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, (b) reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and (c) exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. As a result, our stockholders may not have access to certain information they may deem important. We will remain an emerging growth company until the earliest of (i) the last day of the fiscal year in which the market value of our common stock that is held by non-affiliates exceeds $700 million as of June 30 of that fiscal year, (ii) the last day of the fiscal year in which we have total annual gross revenue of $1.23 billion or more during such fiscal year (as indexed for inflation), (iii) the date on which we have issued more than $1 billion in non-convertible debt in the prior three-year period or (iv) December 31, 2024, which is the last day of the fiscal year following the fifth anniversary of the date of the first sale of common stock in Merida’s initial public offering. We cannot predict whether investors will find our securities less attractive because we rely on these exemptions. If some investors find our securities less attractive as a result of our reliance on these exemptions, the trading prices of our securities may be lower than they otherwise would be, there may be a less active trading market for our securities and the trading prices of our securities may be more volatile.
Further, Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such election to opt out is irrevocable. We have elected not to opt out of such extended transition period, which means that when a standard is issued or revised and it has different application dates for public or private companies, we, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make comparison of our financial statements with another public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period difficult or impossible because of the potential differences in accounting standards used.
As an emerging growth company, we may also take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies including, but not limited to, not being required to obtain an assessment of the effectiveness of our internal controls over financial reporting from our independent registered public accounting firm pursuant to Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. If some investors find our shares of common stock less attractive as a result, there may be a less active market for our shares of common stock and our share price may be more volatile.
Additionally, we are a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited financial statements. We expect that we will remain a smaller reporting company until the last day of any fiscal year for so long as either (a) the market value of our common stock held by non-affiliates does not equal or exceed $250 million as of the prior June 30th, or (b) our annual revenues did not equal or exceed $100 million during such completed
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fiscal year and the market value of our common stock held by non-affiliates did not equal or exceed $700 million as of the prior June 30th. To the extent we take advantage of such reduced disclosure obligations, it may also make comparison of our financial statements with other public companies difficult or impossible.
Our stock price may be volatile and may decline regardless of our operating performance.
The market price of our common stock may fluctuate significantly in response to numerous factors and may continue to fluctuate for these and other reasons, many of which are beyond our control, including:
The stock market has recently experienced extreme price and volume fluctuations. The market prices of securities of companies have experienced fluctuations that often have been unrelated or disproportionate to their operating results. In the past, stockholders have sometimes instituted securities class action litigation against companies following periods of volatility in the market price of their securities. Any similar litigation against us could result in substantial costs, divert management’s attention and resources, and harm our business, financial condition, and results of operations.
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Our stock price may be exposed to additional risks because our business became a public company through a “de-SPAC” transaction. There has been increased focus by government agencies on transactions such as the Business Combination, and we expect that increased focus to continue, and we may be subject to increased scrutiny by the SEC and other government agencies and holders of our securities as a result, which could adversely affect the price of our common stock.
An active trading market for our common stock may not be sustained.
Our common stock is listed on Nasdaq under the symbol “LFLY” and trades on that market and others. We cannot assure you that an active trading market for our common stock will be sustained or that our common stock will be listed on the Nasdaq or another national securities exchange or quoted on an over-the-counter quotation system. Accordingly, we cannot assure you of the liquidity of any trading market, your ability to sell your shares of our common stock when desired or the prices that you may obtain for your shares.
Future sales of shares by existing stockholders could cause our stock price to decline.
If our existing stockholders sell or indicate an intention to sell substantial amounts of our common stock in the public market, the trading price of our common stock could decline. In addition, shares underlying any outstanding options and restricted stock units will become eligible for sale if exercised or settled, as applicable, and to the extent permitted by the provisions of various vesting agreements and Rule 144 of the Securities Act. All the shares of common stock subject to stock options outstanding and reserved for issuance under our equity incentive plans are registered on Form S-8 under the Securities Act and such shares are eligible for sale in the public markets, subject to Rule 144 limitations applicable to affiliates. If these additional shares are sold, or if it is perceived that they will be sold in the public market, the trading price of our common stock could decline.
If securities or industry analysts either do not publish research about us or publish inaccurate or unfavorable research about us, our business, or its market, or if they change their recommendations regarding our common stock adversely, the trading price or trading volume of our common stock could decline.
The trading market for our common stock is influenced in part by the research and reports that securities or industry analysts may publish about us, our business, our market, or our competitors. If one or more of the analysts initiate research with an unfavorable rating or downgrade our common stock, provide a more favorable recommendation about our competitors, or publish inaccurate or unfavorable research about our business, the trading price of our common stock would likely decline. In addition, securities research analysts publish their own periodic projections for our business. These projections may vary widely and may not accurately predict the results we actually achieve. Our stock price may decline if our actual results do not match the projections of these securities research analysts. If any analyst who covers us were to cease coverage of us or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause the trading price or trading volume of our common stock to decline.
Delaware law and provisions in our certificate of incorporation and Bylaws could make a merger, tender offer, or proxy contest difficult, thereby depressing the trading price of our common stock.
Our certificate of incorporation and Bylaws contain provisions that could depress the trading price of our common stock by acting to discourage, delay, or prevent a change of control of us or changes in our management that our stockholders may deem advantageous. These provisions include the following:
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In addition, we will continue to be subject to Section 203 of the DGCL. Section 203 prohibits a publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following the date such person becomes an interested stockholder, unless the business combination or the transaction in which such person becomes an interested stockholder is approved in a prescribed manner. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. Generally, an “interested stockholder” is a person that, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by our board of directors and the anti-takeover effect includes discouraging attempts that might result in a premium over the market price for the shares of our common stock.
Any provision of our certificate of incorporation or Bylaws that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could also affect the price that some investors are willing to pay for our common stock.
Our Bylaws provide that the Court of Chancery of the State of Delaware will be the exclusive forum for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our Bylaws provide that the Court of Chancery of the State of Delaware is the exclusive forum for any derivative action or proceeding brought on our behalf, any action asserting a breach of fiduciary duty, any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our certificate of incorporation or Bylaws or any action asserting a claim against us that is governed by the internal affairs doctrine. These choice of forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other employees and may discourage these types of lawsuits. This provision would not apply to claims brought to enforce a duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. Our Bylaws provide further that, to the fullest extent permitted by law, the federal district courts of the United States will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act. However, Section 22 of the Securities Act provides that federal and state courts have concurrent jurisdiction over lawsuits brought under the Securities Act or the rules and regulations thereunder. To the extent the exclusive forum provision restricts the courts in which claims arising under the Securities Act may be brought, there is uncertainty as to whether a court would enforce such a provision. We note that investors cannot waive compliance with the federal securities laws and the rules and regulations thereunder. Furthermore, the enforceability of similar choice of forum provisions in other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable. While the Delaware courts have determined that such choice of forum provisions are
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facially valid, a stockholder may nevertheless seek to bring a claim in a venue other than those designated in the exclusive forum provisions, and there can be no assurance that such provisions will be enforced by a court in those other jurisdictions. If a court were to find the exclusive-forum provision contained in our Bylaws to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business.
We do not intend to pay dividends for the foreseeable future.
We currently intend to retain any future earnings to finance the operation and expansion of our business and we do not expect to declare or pay any dividends in the foreseeable future. Moreover, the terms of our outstanding convertible notes restrict our ability to pay dividends, and any additional debt we or any of our subsidiaries may incur in the future may include similar restrictions. As a result, stockholders must rely on sales of their common stock after price appreciation as the only way to realize any future gains on their investment.
We may issue additional shares of common stock or other equity securities without your approval, which would dilute your ownership interests and may depress the market price of our common stock.
As of December 31, 2022, we had options outstanding to purchase up to an aggregate of 3,532,428 shares of our common stock, convertible notes outstanding which may convert into a maximum of 2,480,000 shares of our common stock, 1,625,194 shares of our common stock held by the holders of Merida Holdings, LLC (the “Sponsor”) shares prior to Merida’s initial public offering that are subject to earn-out conditions, and Warrants outstanding to purchase 10,450,987 shares of our common stock. As of January 1, 2023, we also had the ability to issue up to 4,415,905 shares of common stock under the 2021 Plan and 1,103,976 shares of common stock under the Employee Stock Purchase Plan, and to issue up to an aggregate of 6,000,000 shares of common stock to former Leafly shareholders per the Merger Agreement and to Participants under the Earn-Out Plan.
We may issue additional shares of common stock or other equity securities of equal or senior rank in the future in connection with, among other things, future acquisitions or repayment of outstanding indebtedness, without stockholder approval, in a number of circumstances.
Our issuance of additional shares of common stock or other equity securities of equal or senior rank would have the following effects:
There is no guarantee that the Warrants will ever be in the money, and they may expire worthless.
The exercise price for the Warrants is $11.50 per share of common stock. There is no guarantee that the Warrants will ever be in the money prior to their expiration on February 4, 2027, and as such, the Warrants may expire worthless.
Risks Relating to our Indebtedness
We may not have the ability to raise the funds necessary to repurchase the convertible notes upon a fundamental change or repay the convertible notes in cash at their maturity, and our future debt may contain limitations on our ability to pay cash upon redemption or repurchase of the convertible notes.
Holders of the convertible notes have the right under the terms of the convertible notes to require us to repurchase all or a portion of their convertible notes upon the occurrence of a fundamental change before the applicable maturity date at a
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repurchase price equal to 100% of the principal amount of such convertible notes to be repurchased plus accrued and unpaid interest to, but not including, the repurchase date. Moreover, we will be required to repay the convertible notes in cash at their maturity, unless earlier converted, redeemed or repurchased.
We may not have enough available cash or be able to obtain financing at the time we are required to make repurchases of such convertible notes surrendered or pay cash with respect to the accrued and unpaid interest on such convertible notes being converted.
In addition, our ability to repurchase, redeem or to pay the accrued and unpaid interest in cash upon conversion of convertible notes may be limited by law, regulatory authority, or agreements governing our future indebtedness. Our failure to repurchase the convertible notes at a time when the repurchase is required by terms of the convertible notes or to pay the accrued and unpaid interest in cash upon conversion of such convertible notes as required by the terms of the convertible notes would constitute a default under such convertible notes. A default under the convertible notes or the fundamental change itself could also lead to a default under agreements governing our future indebtedness. If the payment of the related indebtedness were to be accelerated after any applicable notice or grace periods, we may not have sufficient funds to repay the interest on such indebtedness and repurchase the convertible notes or to pay accrued and unpaid interest in cash upon conversion of the convertible notes.
We may still incur substantially more debt or take other actions that would diminish our ability to make payments on the convertible notes when due.
We and our subsidiaries may be able to incur substantial additional debt in the future, subject to the restrictions contained in our debt instruments. We are subject to certain restrictions under the terms of the convertible notes, including limitations regarding incurring future indebtedness, subject to specific allowances in the convertible notes. However, we will not be restricted from recapitalizing our debt or taking a number of other actions that are not limited by the terms of the convertible notes that could have the effect of diminishing our ability to make payments on the convertible notes when due. Our indebtedness could adversely affect our financial health and prevent us from fulfilling our obligations under our debt instruments and executing on our business plan.
As of December 31, 2022, our total long-term debt was approximately $28.9 million, representing the $30 million principal of new convertible notes net of associated debt issuance costs. Our indebtedness could have important consequences to our current and potential investors. These risks include:
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We are subject to risks associated with debt financing, including the risk that our cash flow could be insufficient to meet required payments on our debt. In particular, if as a result of macroeconomic conditions our revenues, cash flows and/or EBITDA continue to decline or we incur additional indebtedness, we may be unable to make required payments on our debt or to satisfy the financial and other covenants contained in the convertible notes.
Restrictive debt covenants may limit our ability to pursue our growth strategy.
The convertible notes contain covenants restricting or limiting our ability to, among other things:
These restrictions may adversely affect our ability to pursue our growth strategy.
General Risks
Negative publicity could adversely affect our reputation and brand.
Negative publicity about our company, including our technology, sales practices, personnel or customer service, or the cannabis industry more generally, could diminish confidence in and the use of our services. Our reputation and brand, the traffic to our website and mobile application, and our business may suffer if consumer sentiment towards our platform and services, or the cannabis industry more generally, turns negative. In addition, our website and mobile application publish opinion pieces and serve as platforms for expression by our users, and third parties or the public at large may attribute the political or other sentiments expressed on our platform to us, which could harm our reputation.
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Our business depends in part on a strong brand, and any failure to maintain, protect and enhance our brand would hurt our ability to retain or expand our base of users, suppliers and partners, or our ability to increase their level of engagement.
We have developed a strong brand that we believe has contributed significantly to the success of our business. Maintaining, protecting and enhancing the “Leafly” brand is critical to expanding our base of users, suppliers and partners and increasing their engagement with our solutions, and will depend largely on our ability to maintain consumer trust in our service offerings and in the quality and integrity of the user content and other information found on our website and mobile application. Other factors affecting our brand recognition and reputation that we have the ability to influence include the following:
In addition, our brand recognition and reputation may be affected by factors that are outside our control, such as:
Damage to our reputation and loss of brand equity from one or more of the factors listed above may reduce demand for our platform and have an adverse effect on our business, operating results and financial condition. Moreover, any attempts to rebuild our reputation and restore the value of our brand may be costly and time-consuming, and such efforts may not ultimately be successful.
We rely on the performance of highly skilled personnel, and if we are unable to attract, retain and motivate well-qualified employees and contractors, our business could be harmed.
We believe our success has depended, and continues to depend, on the efforts and talents of our employees, including our leadership team, software engineers, legal, finance, marketing professionals, sales staff and contractors. Our future success
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depends on our continuing ability to attract, develop, motivate and retain highly qualified and skilled employees and contractors. Qualified individuals are in high demand, in particular software engineers, and we may incur significant costs to attract them. Our industry may pose additional challenges to attracting qualified individuals. In addition, the loss of any of our senior management or key employees could adversely affect our ability to execute our business plan, and we may not be able to find adequate replacements. All of our officers and other U.S. employees are at-will employees, which means they may terminate their employment relationship with us at any time, and their knowledge of our business and industry would be extremely difficult to replace. We cannot ensure that we will be able to retain the services of any members of our senior management or other key employees. If we do not succeed in attracting well-qualified employees and contractors or retaining and motivating existing employees and contractors, our business could be harmed.
If our security measures are compromised, or if our platform is subject to attacks that degrade or deny the ability of users to access our content, users may curtail or stop use of our platform.
Like all online services, our platform is vulnerable to computer viruses, break-ins, phishing attacks, attempts to overload our servers with denial-of-service or other attacks and similar disruptions from unauthorized use of our computer systems, any of which could lead to interruptions, delays, or website shutdowns, causing loss of critical data or the unauthorized disclosure or use of personally identifiable or other confidential information. If we experience compromises to our security that result in performance or availability problems, the complete shutdown of our website, or the loss or unauthorized disclosure of confidential information, our users or advertising partners may lose trust and confidence in us, and decrease the use of our platform or stop using our platform in its entirety. Moreover, we could be required or otherwise find it appropriate to expend significant capital and other resources to respond to, notify third parties of, or otherwise address the incident or breach and its root cause. Because the techniques used to obtain unauthorized access, disable or degrade service, or sabotage systems change frequently, and often are not recognized until launched against a target and may originate from less regulated and remote areas around the world, we may be unable to proactively address these techniques or to implement adequate preventative measures. Any or all of these issues could negatively impact our ability to attract new users or deter current users from returning and increasing engagement and traffic, cause existing or potential suppliers and advertising partners to cancel their contracts or subject us to third party lawsuits, regulatory fines or other action or liability, thereby harming our results of operations.
Our cash holdings could be materially, adversely affected if the financial institutions in which we hold our cash fail.
We maintain cash deposits in accounts at financial institutions in the U.S. and Canada. At times, our deposits in U.S. or Canadian financial institutions may exceed the amount of insurance provided on such deposits by the Federal Deposit Insurance Corporation (“FDIC”), the National Credit Union Administration (“NCUA”), or the Canada Deposit Insurance Corporation (“CDIC”), as applicable. If one or more of the financial institutions in which we hold cash deposits fails , we could lose all or a portion of our uninsured cash balances. If access to our cash accounts in the future is impaired, whether temporarily or otherwise, we may be unable to pay our operational expenses such as payroll or make other payments. For example, on March 10, 2023, the California Department of Financial Protection and Innovation closed Silicon Valley Bank (“SVB”) and appointed the FDIC as its receiver. Since then, at least one additional bank was closed and taken over by the FDIC. We do not have a banking relationship with either of these bank. Despite the FDIC’s backstop of customer deposits at SVB, there can be no assurance that the FDIC will take the same or similar action in the event of future bank failures, and thus there remains the risk of loss on uninsured portions of cash holdings at U.S. financial institutions. If other banks and financial institutions enter receivership or become insolvent in the future in response to financial conditions affecting the banking system and financial markets, including the financial institutions in which we or our customers hold cash, our and our customers’ ability to access existing cash, cash equivalents and investments may be threatened and could have a material adverse effect on our business and financial condition. If our customers lose access to their cash accounts in the future, their ability to pay us for our products and services may be materially impacted, which could also have a material adverse impact on our business and financial condition.
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The impact of worldwide economic conditions, including the resulting effect on advertising spending by businesses, may adversely affect our business, operating results and financial condition.
Our performance is subject to worldwide economic conditions and, particularly, their impact on levels of advertising spend by cannabis businesses, which are largely small and medium-sized businesses, and which may be disproportionately affected by economic downturns. In addition, our business may be directly affected by business cycles and other factors affecting the healthcare industry, due to the uses or potential uses of cannabis in the healthcare industry. To the extent that worldwide economic conditions (or other factors affecting the healthcare industry) materially deteriorate, our existing and potential advertising partners may no longer consider investment in our advertising solutions a necessity, or may elect to reduce advertising budgets. Historically, economic downturns have resulted in overall reductions in advertising spending, although this was generally not the case during the economic downturn in 2020-2021 related to the COVID-19 pandemic. However, we experienced lower payment collection rates during the same period. In particular, web-based advertising solutions may be viewed by some of our existing and potential advertising partners as a lower priority and could cause advertising partners to reduce the amounts they spend on advertising, terminate their use of our advertising solutions or default on their payment obligations to us. In addition, economic conditions may adversely impact levels of consumer spending, which could adversely impact the numbers of consumers visiting our website and mobile application. Consumer purchases of discretionary items generally decline during recessionary periods and other periods in which disposable income is adversely affected. If spending at many of the local businesses reviewed on our website or mobile application declines, businesses may be less likely to use our advertising solutions, which could have a material adverse effect on our financial condition and results of operations.
Our business is subject to the risks of earthquakes, fires, floods, droughts, climate change, crop failure due to weather or other factors, water shortages, epidemics, pandemics and other natural catastrophic events and to interruption by man-made problems such as computer viruses or terrorism.
Our systems and operations are vulnerable to damage or interruption from earthquakes, fires, floods, droughts, climate change, water shortages, epidemics, pandemics, power losses, telecommunications failures, terrorist attacks, acts of war, human errors, break-ins and similar events. For example, a significant natural disaster, such as an earthquake, fire or flood, could have a material adverse impact on our business, operating results and financial condition, and our insurance coverage may be insufficient to compensate us for losses that may occur. Our U.S. corporate operations are located in the Seattle area, a region known for seismic activity. In addition, acts of terrorism or civil unrest could cause disruptions in our or our suppliers’ businesses or the economy as a whole. For more information see “- Operational Risks — We rely upon cloud-based data centers, infrastructure and technologies provided by third parties, and technology systems and electronic networks supplied and managed by third parties, to operate our business, and interruptions or performance problems with these systems, technologies and networks may adversely affect our business and operating results.”
Additionally, our brand and retailer clients rely on agricultural businesses to grow cannabis. As such, our suppliers’ businesses, and accordingly our business, are subject to the risks inherent in the agricultural business, including the risk of crop failure presented by weather, insects, plant diseases and similar agricultural risks. Any interruption in the business of cannabis growers due to such risks may have a material adverse effect on our business.
Our business, results of operations and financial condition could in the future be materially adversely affected by the COVID-19 pandemic.
COVID-19 has had, and continues to have, a significant impact around the world, prompting governments and businesses to
take unprecedented measures in response. Such measures have included restrictions on travel and business operations,
temporary closures of businesses, and quarantine and shelter-in-place orders. The COVID-19 pandemic has at times
significantly curtailed global economic activity and caused significant volatility and disruption in global financial markets.
We continue to monitor the situation and take appropriate actions in accordance with the recommendations and requirements of relevant authorities. If governmental restrictions remain in place, additional prevention and mitigation measures are
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implemented in the future, or there is uncertainty about the effectiveness of these or any other measures to contain or treat COVID-19, there is likely to be an adverse impact on global economic conditions and consumer confidence and spending, which could materially and adversely affect our operations as well as our relationships with suppliers and consumers. For example, during the course of the pandemic, some of our suppliers' operations and supply chains were significantly disrupted and caused a temporary significant decrease in activity on our platform.
The extent to which the COVID-19 pandemic may impact our operational and financial performance remains uncertain and will depend on future developments, including the duration, spread and intensity of the pandemic, the emergence of new variants, the development, availability, distribution and effectiveness of vaccines and treatments, and potential governmental and other restrictions resulting therefrom, all of which are uncertain and difficult to predict considering the constantly evolving landscape. As a result, it is not currently possible to ascertain the overall impact of COVID-19 on our business. However, if the pandemic continues to persist as a severe worldwide health crisis, our business, results of operations and financial condition may be materially adversely impacted, and it may also have the effect of heightening many of the other risks described in this “Risk Factors” section.
Item 1B. UNRESOLVED STAFF COMMENTS
None.
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Item 2. PROPERTIES
Leafly’s corporate headquarters is in Seattle, Washington. Many of our employees are geographically dispersed, with our largest cluster of employees outside of Seattle based in Texas. As of December 31, 2022, we did not have any material physical properties used in our operations in Seattle or elsewhere. Deferring the use of any material physical properties and moving to a fully remote workforce after the impact of COVID-19 has allowed us to best serve the needs of our employees and reinvest those capital resources into our business.
Item 3. LEGAL PROCEEDINGS
We are involved in, and from time to time may become involved in, investigations, claims, lawsuits, audits or other proceedings arising in the ordinary course of our business. In accordance with applicable accounting guidance, we establish accruals for all lawsuits, claims and expected settlements when we believe it is probable that a loss has been incurred and the amount of the loss is reasonably estimable. When a loss contingency is not both probable and reasonably estimable, we do not establish an accrual. Any such loss estimates are inherently uncertain, based on currently available information and are subject to management's judgment and various assumptions. Due to the inherent subjectivity of these estimates and unpredictability of outcomes of legal proceedings, any amounts accrued may not represent the ultimate resolution of such matters.
To the extent we believe any potential loss relating to such lawsuits and claims may have a material impact on our liquidity, consolidated financial position, results of operations, and/or our business as a whole and is reasonably possible but not probable, we would disclose information relating to any such potential loss, whether in excess of any established accruals or where there is no established accrual. We also would disclose information relating to any material potential loss that is probable but not reasonably estimable. Where reasonably practicable, we would provide an estimate of loss or range of potential loss. No disclosures are generally made for any loss contingencies that are deemed to be remote.
Based on information available to us and our review of active proceedings, we have not recognized a material accrual liability for these matters, nor do we currently expect it is reasonably possible that these matters will result in a material liability to us. However, such proceedings are inherently unpredictable and could result in sanctions, damages, fines and other penalties that could, individually, or in the aggregate, materially impact our financial condition or results of operations.
Item 4. MINE SAFETY DISCLOSURES
Not applicable.
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PART II
Item 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information
Our common stock and warrants are currently traded on the Nasdaq Global Market under the symbols LFLY and LFLYW, respectively. From November 7, 2019 until the consummation of the Business Combination, our common stock and warrants traded on the Nasdaq Global Market under the trading symbols “MCMJ” and “MCMJW,” respectively.
Holders
The aggregate number of stockholders of record as of March 20, 2023 was 613.
Dividend Policy
We have never paid any cash dividends on our common stock. We anticipate that we will retain funds and future earnings to support operations and to finance the growth and development of our business. Therefore, we do not expect to pay cash dividends in the foreseeable future. Any future determination to pay dividends will be at the discretion of our board of directors and will depend on our financial condition, results of operations, capital requirements and other factors that our board of directors deems relevant. Moreover, the terms of our outstanding convertible notes restrict our ability to pay dividends, and any additional debt we or any of our subsidiaries may incur in the future may include similar restrictions.
Item 6. RESERVED
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Item 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of the Company’s financial condition and results of operations should be read in conjunction with our audited financial statements and the notes related thereto which are included in “Item 8. Financial Statements and Supplementary Data” of this Annual Report on Form 10-K. Certain information contained in the discussion and analysis set forth below includes forward-looking statements. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of many factors, including those set forth under “Item 1A. Risk Factors” and elsewhere in this Annual Report on Form 10-K.
Amounts in this section are presented in thousands, except for per share numbers and percentages.
Business Overview
Leafly is a leading online cannabis discovery marketplace and resource for cannabis consumers. Leafly provides an information resource platform with a deep library of content, including detailed information about cannabis strains, retailers and current events. We are a trusted destination to discover legal cannabis products and order them from licensed retailers with offerings that include subscription-based products and digital advertising. Leafly was founded in 2010 and is headquartered in Seattle with 204 employees in the U.S. and Canada as of December 31, 2022.
Leafly is one of the cannabis industry’s leading marketplaces for brands and retailers to reach one of the largest audiences of consumers interested in cannabis. Our platform includes educational information, strains data, and news, enabling consumers to use Leafly’s content library to have an informed shopping experience. Leafly reduces the friction caused by fragmented regulation of cannabis across North America and offers a compliant digital marketplace that connects cannabis consumers with legal and licensed retailers and brands nearest them.
Leafly allows each shopper to tailor their journey, selecting the store, brand, and cannabis form-factor that appeals to them. Once that shopper builds a basket and is ready to order, our non-plant-touching business model sends that order reservation to the store for payment and fulfillment. By matching stores and shoppers, we deliver value to all constituencies. We monetize our platform primarily through the sale of subscription packages, bundling e-commerce software and advertising solutions, as well as non-subscription-based advertising to retailers and brands. Through the participation on our platform, retailers and brands can reach and engage the millions of MAUs on our platform, one of the largest cannabis-focused audiences in the world.
During the second quarter and continuing into the third quarter of 2022, we began to see some macro-economic impacts on the business. Our retailer, brand, and multi-state operator customers signaled that their advertising budgets were under scrutiny and, in some cases, froze their advertising spend. In addition, we saw heightened customer account churn in our less mature markets, which we first observed late in the first quarter of 2022. These conditions continued for the remainder of the fiscal year. In light of the current macroeconomic environment, we have taken steps to manage the business accordingly. We implemented plans to reduce operating expenses, including an announced headcount reduction during the fourth quarter of 2022 of 56 employees or approximately 21% of our workforce at the time. We incurred non-recurring cash charges of approximately $500 associated with the headcount reductions during the fourth quarter of 2022. We anticipate these and other changes we made to our cost structure in 2022 will save approximately $16,000 in cash costs annually, now that all of the restructuring and other cost savings initiatives are fully implemented. These cost reductions are not expected to have a significant impact on the scope of our business. We will focus on maximizing efficiencies across all areas, investing in projects and products that we expect will result in the highest returns.
Merger and Public Company Costs
As a consequence of the Business Combination, Leafly became the successor to an SEC-registered and Nasdaq-listed company which required Leafly to hire additional personnel and implement procedures and processes to address public company regulatory requirements and customary practices. Leafly has incurred, and expects to continue to incur, additional
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expenses as a public company for, among other things: additional directors’ and officers’ liability insurance; compensation for directors and additional internal and external accounting, legal, and administrative resources, including increased audit and legal fees; and costs of certain related software tools.
Direct costs of the Business Combination and resulting recapitalization have been recorded to additional paid-in capital and other expense, as appropriate (see Note 1 to our consolidated financial statements within this Annual Report), while general costs associated with becoming and operating as a public company have been expensed throughout operating expenses within our Consolidated Statements of Operations, as applicable, primarily to general and administrative. We currently anticipate we will incur approximately $6,200 to $6,800 annually in incremental cash costs of operating as a public company. This estimate does not reflect general increases in costs due to growing our business. Non-cash stock-based compensation expenses have increased as a result of our transition to operating as a public company, as we leveraged our available equity, including derivatives thereof, to fund operations. These estimates and expectations may change as we begin to experience these new conditions.
Key Metrics
In addition to the measures presented in our consolidated financial statements, our management regularly monitors certain metrics in the operation of our business:
Monthly Active Users
MAUs represents the total unique visitors to Leafly websites and native apps each month, which in turn represents the maximum potential unique visitors that could become customers of dispensaries or brands listed on Leafly’s platform, within a given month. Leafly’s revenue model for dispensaries and brands is based, in part, on the number of visitors it can drive to dispensary or brand listings on the platform. Providing more visitors, as represented by MAUs, may lead to increased advertising rates for both dispensaries and brands.
Users (visitors) are considered active by initiating a session on at least one webpage or app. Each month’s MAU tally represents the total number of unique visitors to Leafly during the specified month and includes both new visitors as well as those returning from the previous month. We count a unique user the first time an individual accesses one of our websites or native apps during a calendar month. If an individual accesses our websites using different web browsers within a given month, the first access by each such web browser is counted as a separate unique user. If an individual accesses more than one of our websites or native apps in a single month, the first access to each website or app is counted as a separate unique user since unique users are tracked separately for each domain and native app. The unique visitors are measured using Google Analytics for our web applications and Firebase for our native applications.
Due to third-party technological limitations, user software settings, or user behavior, Google Analytics may assign a unique cookie to different instances of access by the same individual to our websites. In such instances, Google Analytics would count different instances of access by the same individual as separate unique users. Accordingly, reliance on the number of unique users counted by Google Analytics may overstate the actual number of unique users who access our websites during the period. Additionally, we cannot differentiate between a user who accesses Leafly across both the web and a native app, which could overstate the number of unique users.
A growing number of MAUs is indicative of our overall product health as it is the result of metrics reflecting both retention and acquisition of customers of our suppliers. While we consider MAUs to be a leading indicator of general product health representing the blend of new customer acquisition and the retention of returning customers, we also acknowledge that this must be paired with a deeper analysis of MAU behavioral metrics. We measure the quality of experience by looking at MAU cohorts engagement behaviors as measured by time-on-site, interaction with personalization features such as favoriting and following, and orders placed.
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Ending Retail Accounts
Ending retail accounts is the number of paying retailer accounts with Leafly as of the last month of the respective period. Retail accounts can include more than one retailer. This metric is helpful because it represents a portion of the volume element of our revenue and provides an indication of our market share.
Retailer Average Revenue Per Account (“ARPA”)
Retailer ARPA is calculated as monthly retail revenue, on an account basis, divided by the number of retail accounts that were active during that same month. An active account is one that had an active paying subscription with Leafly in the month. Leafly does not provide retailers with an ongoing free subscription offering, but may offer a free introductory period with certain subscriptions. This metric is helpful because it represents the price element of our revenue.
Results of Operations
Key Metrics
The table below presents these measures for the respective periods:
|
Year Ended December 31, |
|
|||||||||||||
|
2022 |
|
|
2021 |
|
|
Change |
|
|
Change (%) |
|
||||
Key Operating Metrics: |
|
|
|
|
|
|
|
|
|
|
|
||||
Average MAUs (in thousands)1 |
|
7,962 |
|
|
|
10,005 |
|
|
|
(2,043 |
) |
|
|
-20 |
% |
Ending retail accounts2 |
|
5,806 |
|
|
|
5,265 |
|
|
|
541 |
|
|
|
10 |
% |
Retailer ARPA3 |
$ |
566 |
|
|
$ |
636 |
|
|
$ |
(70 |
) |
|
|
-11 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
||||
MAUs decreased 20% for the year ended December 31, 2022 compared to 2021, due to people not shopping online at the same pace as they did during the pandemic, along with a decline in organic search traffic (in particular, our news sections). We continued to focus primarily on growing the number of supply partners on our platform, leading to a 10% growth in year-over-year ending retail accounts. Part of this growth in retail accounts included expanding into newer and lower penetration markets at a lower price point, a strategic decision which contributed to an 11% decline in ARPA for the year ended December 31, 2022.
Revenue
We generate our revenue through the sale of online advertising and online order reservation enablement on the Leafly platform for suppliers in our Retail and Brands segments. Within our Retail segment, we monetize our multi-sided retail marketplace through monthly subscriptions that enable retailers to advertise to and acquire potential shoppers. Our solutions allow retailers, where legally permissible, to accept online orders from shoppers, who visit Leafly.com or use a Leafly-powered online order reservation solution, including our iOS app. Within our Brands segment, our revenue is derived by creating custom advertising campaigns for both small and large brands that target Leafly’s broad and diverse audience and offering brands profile listings on our platform, which are sold on a monthly recurring subscription or annual basis. Advertising opportunities include on-site digital display, native placements, email, branded content, and off-site audience
62
extension. Leafly’s advertising partners span a variety of verticals including hardware and accessories, THC-infused products, hemp, CBD, and seed.
|
Year Ended December 31, |
|
|||||||||||||
|
2022 |
|
|
2021 |
|
|
Change ($) |
|
|
Change (%) |
|
||||
Revenue: |
|
|
|
|
|
|
|
|
|
|
|
||||
Retail |
$ |
36,742 |
|
|
$ |
33,628 |
|
|
$ |
3,114 |
|
|
|
9 |
% |
Brands |
|
10,621 |
|
|
|
9,408 |
|
|
|
1,213 |
|
|
|
13 |
% |
Total revenue |
$ |
47,363 |
|
|
$ |
43,036 |
|
|
$ |
4,327 |
|
|
|
10 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Retail
Retail revenue from digital media display ads and subscriptions revenue increased $2,518 and $483, respectively, for the year ended December 31, 2022. Digital media display ads revenue growth was driven by increased volumes of display ads sold. For the year ended December 31, 2022, the increase in retail subscription revenue was driven by higher volume, reflected in a 10% increase in the number of ending retail accounts, offset in part by the price dynamics discussed herein.
The Company's continued focus on adding ending retail accounts, with a reduction in prices in target markets, reflects a strategic decision to attract a greater number of local retailers onto our platform. In 2022, we continued use of a regional pricing model based on traffic and orders, which had the effect of decreasing overall prices within our mix of revenue during 2022 when compared to 2021, as reflected in an 11% decrease in ARPA for the year ended December 31, 2022.
Brands
For the year ended December 31, 2022, Brands revenue increased due primarily to:
The Company’s current systems do not allow us to precisely quantify changes in Brands revenue attributable to price and volume. We continue to implement systems and processes that will allow us to do so. In the meantime, the information we have from our existing systems, combined with our knowledge of changes in list prices, informs the discussion of Brands volume and pricing that follows. We believe Brands revenue grew primarily due to increased volume. We offer a solution for brands that continue to lack access to their target audience through certain traditional advertising channels that do not work with the cannabis industry, and as CBD and related cannabis-adjacent brands want to advertise to our audience.
Cost of Revenue
|
Year Ended December 31, |
|
|||||||||||||
|
2022 |
|
|
2021 |
|
|
Change ($) |
|
|
Change (%) |
|
||||
Cost of sales: |
|
|
|
|
|
|
|
|
|
|
|
||||
Retail |
$ |
4,141 |
|
|
$ |
3,193 |
|
|
$ |
948 |
|
|
|
30 |
% |
Brands |
|
1,719 |
|
|
|
1,790 |
|
|
|
(71 |
) |
|
|
-4 |
% |
Total cost of sales |
$ |
5,860 |
|
|
$ |
4,983 |
|
|
$ |
877 |
|
|
|
18 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
||||
63
Retail
Retail cost of revenue increased due primarily to $591 increase in business platform costs, primarily data licensing fees, for the year ended December 31, 2022, and due to $161 higher website infrastructure costs, primarily hosting fees. Retail cost of revenue also increased $185 for the year ended December 31, 2022 due to increased headcount costs, generally.
Brands
Brands cost of revenue decreased for the year ended December 31, 2022, primarily reflecting a decrease of $448 in costs of audience extension, corresponding to decreased associated revenue. Partially offsetting this decrease were $321 higher business platform costs and $54 higher website infrastructure costs, as described under Retail cost of revenue above, as these costs are shared across both of our segments. Brands cost of revenue also increased $64 for the year ended December 31, 2022, due to increased headcount costs, generally.
Operating Expenses
|
Year Ended December 31, |
|
|||||||||||||
|
2022 |
|
|
2021 |
|
|
Change ($) |
|
|
Change (%) |
|
||||
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
||||
Sales and marketing |
$ |
27,080 |
|
|
$ |
19,640 |
|
|
$ |
7,440 |
|
|
|
38 |
% |
Product development |
|
14,988 |
|
|
|
13,896 |
|
|
|
1,092 |
|
|
|
8 |
% |
General and administrative |
|
27,440 |
|
|
|
15,142 |
|
|
|
12,298 |
|
|
|
81 |
% |
Total operating expenses |
$ |
69,508 |
|
|
$ |
48,678 |
|
|
$ |
20,830 |
|
|
|
43 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Sales and marketing expenses grew as we made additional investments in this area of our business following increased funding through the issuance of $30,000 aggregate principal amount of convertible notes issued pursuant to a convertible note purchase agreement in January 2022, which Legacy Leafly subsequently guaranteed and joined as a party to the agreement on February 4, 2022 in connection with the Business Combination the (the “2022 Notes”), with cost temperament beginning in the third quarter of 2022 as we began to implement the cost reduction activities described under “— Business Overview” above. We increased advertising and marketing spending by $1,011 and employee compensation costs by $5,787, when comparing the year ended December 31, 2022 to the same period in 2021. The number of sales and marketing staff increased by approximately 16% when comparing these periods.
Product development expenses behaved similarly to sales and marketing expenses, growing with additional funding and beginning to slow as we implemented cost reduction activities. Professional services fees included within product development grew $1,119 for the year ended December 31, 2022 largely related to the use of outsourced providers for staff augmentation. Also within product development are increases in headcount costs generally offset by capitalized product development costs in 2022. Headcount costs prior to capitalization increased approximately $2,700 for the year ended December 31, 2022. Product development expenses are reported net of $2,310 of costs capitalized to internal-use software for the year ended December 31, 2022. No amounts were capitalized in 2021. See Note 6 to our consolidated financial statements within this Annual Report for more information.
General and administrative expenses increased for the year ended December 31, 2022 due primarily to:
64
Other Income and Expense
|
Year Ended December 31, |
|
|||||||||||||
|
2022 |
|
|
2021 |
|
|
Change ($) |
|
|
Change (%) 1 |
|
||||
Other income (expense): |
|
|
|
|
|
|
|
|
|
|
|
||||
Interest expense, net |
$ |
(2,811 |
) |
|
$ |
(1,349 |
) |
|
$ |
(1,462 |
) |
|
|
108 |
% |
Change in fair value of derivatives |
|
36,823 |
|
|
|
— |
|
|
|
36,823 |
|
|
nm |
|
|
Other expense, net |
|
(937 |
) |
|
|
(50 |
) |
|
|
(887 |
) |
|
nm |
|
|
Total other income (expense) |
$ |
33,075 |
|
|
$ |
(1,399 |
) |
|
$ |
34,474 |
|
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Interest expense, net increased due to higher principal balances of convertible promissory notes outstanding, on average, for the year ended December 31, 2022 when compared to the same period in 2021.
The change in fair value of derivatives is due to the recording of derivatives in connection with the Business Combination and changes in their valuations. See Note 18 to our consolidated financial statements within this Annual Report for details on the valuations and the fair value changes in the periods presented.
Other expense, net increased for the year ended December 31, 2022 due primarily to $874 of costs incurred in connection with the Business Combination, which were allocated upon closing of the Business Combination to newly issued derivative liabilities that are recorded at fair value on a recurring basis. See Note 1 to our consolidated financial statements within this Annual Report for information on allocation of these costs.
Non-GAAP Financial Measures
Earnings Before Interest, Taxes and Depreciation and Amortization (EBITDA) and Adjusted EBITDA
To provide investors with additional information regarding our financial results, we have disclosed EBITDA and Adjusted EBITDA, both of which are non-GAAP financial measures that we calculate as net income (loss) before interest, taxes and depreciation and amortization expense in the case of EBITDA and further adjusted to exclude non-cash, unusual and/or infrequent costs in the case of Adjusted EBITDA. Below we have provided a reconciliation of net income (loss) (the most directly comparable GAAP financial measure) to EBITDA and from EBITDA to Adjusted EBITDA.
We present EBITDA and Adjusted EBITDA because these metrics are a key measure used by our management to evaluate our operating performance, generate future operating plans, and make strategic decisions regarding the allocation of investment capacity. Accordingly, we believe that EBITDA and Adjusted EBITDA provide useful information to investors and others in understanding and evaluating our operating results in the same manner as our management.
EBITDA and Adjusted EBITDA have limitations as an analytical tool, and you should not consider these in isolation or as a substitute for analysis of our results as reported under GAAP. Some of these limitations are as follows:
65
Because of these limitations, you should consider EBITDA and Adjusted EBITDA alongside other financial performance measures, including net income (loss) and our other GAAP results.
A reconciliation of net income (loss) to non-GAAP EBITDA and Adjusted EBITDA follows:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
Net income (loss) |
|
|
$ |
5,070 |
|
|
$ |
(12,024 |
) |
Interest expense, net |
|
|
|
2,811 |
|
|
|
1,349 |
|
Depreciation and amortization expense |
|
|
|
449 |
|
|
|
253 |
|
EBITDA |
|
|
|
8,330 |
|
|
|
(10,422 |
) |
Stock-based compensation |
|
|
|
3,917 |
|
|
|
1,022 |
|
Transaction expenses allocated |
|
|
|
874 |
|
|
|
— |
|
Severance costs |
|
|
|
492 |
|
|
|
— |
|
Change in fair value of derivatives |
|
|
|
(36,823 |
) |
|
|
— |
|
Adjusted EBITDA |
|
|
$ |
(23,210 |
) |
|
$ |
(9,400 |
) |
|
|
|
|
|
|
|
|
||
The increase in EBITDA is due to the change in fair value of the derivatives for the year ended December 31, 2022. See Note 18 to our consolidated financial statements within this Annual Report for more information regarding the fair value of derivatives. The increase in our loss on an Adjusted EBITDA basis is due to increased operating expenses offset in part by increased revenue. See discussion of these changes under the respective headings above.
Financial Condition
Cash, Cash Equivalents, and Restricted Cash
Cash, cash equivalents, and restricted cash totaled $25,202 and $28,695 as of December 31, 2022 and 2021, respectively. Explanations of our cash flows for the periods presented follow.
Cash Flows
As compared to the year ended December 31, 2021, cash used in operations increased by $21,240 to $28,088 for the year ended December 31, 2022, mainly due to increased net loss from operations. See discussion under “— Discussion of our Results of Operations” above for more information. Cash used in investing activities increased $2,383 to a use of $2,470 primarily due to software capitalization in the current year. Cash and restricted cash provided by financing decreased $3,631 over this same period to $27,065 for the year ended December 31, 2022, mainly due to the use of financing proceeds received earlier in the year to repurchase common stock in settlement of the Share Transfer, Non-Redemption and Forward Purchase Agreements by and between Merida and certain of its stockholders, dated as of December 22, 2021, as amended (the “FPAs”) in the third quarter of 2022. See Notes 3, 12, and 13 to our consolidated financial statements within this Annual Report for more information.
Stock and Convertible Promissory Note Issuances
Since our capital restructuring in 2019, we have financed a sizable portion of our operations from issuances of stock and convertible promissory notes. The proceeds of these issuances have been used to fund, among other things, working capital and capital expenditures. See more information about our stock in Note 12 and our convertible notes in Note 11 to our consolidated financial statements within this Annual Report.
66
Deferred Revenue
Deferred revenue is primarily related to software subscriptions and display ads. The revenue deferred at December 31, 2022 is expected to be recognized in the subsequent 12-month period. See Note 9 to our consolidated financial statements within this Annual Report for further discussion.
Contractual Obligations and Other Planned Uses of Capital
We are obligated to repay any convertible notes that do not ultimately convert to equity, as well as the other operating liabilities on our Consolidated Balance Sheets, such as accrued liabilities. We intend to continue to invest in product and feature development, expanding our marketing and sales operations, improving and expanding our technology and finance infrastructure, hiring additional and retaining existing employees, pursuing strategic opportunities, and meeting the increased compliance requirements associated with our operation as a public company. As we continue to grow, we expect the aggregate amount of these expenses will also continue to grow.
Liquidity and Capital Resources
Leafly has incurred operating losses since its inception and had an accumulated deficit of $64,700 and $69,770 at December 31, 2022 and 2021, respectively.
Under the rules of ASC Subtopic 205-40 “Presentation of Financial Statements — Going Concern” (“ASC 205-40”), reporting companies are required to evaluate whether conditions and/or events raise substantial doubt about their ability to meet their future financial obligations as they become due within one year after the date that the financial statements are issued. This evaluation takes into account a company’s current available cash and projected cash needs over the one-year evaluation period but may not consider things beyond its control. As noted above, we have incurred recurring operating losses, used cash from operations, and relied on the capital raised in our merger transaction to continue ongoing operations. These conditions, when considered in the aggregate, raise substantial doubt about our ability to continue as a going concern within one year of the date these financial statements are issued. During the fourth quarter of the year ended December 31, 2022, we implemented a restructuring plan, including a reduction in force of approximately 56 persons and other cost cutting measures, with an estimated expected annual cash savings of approximately $16,000 beginning in 2023. These cost-cutting measures are expected to allow the company to prioritize growth opportunities, realign its expense structure, and preserve capital while strengthening its financial position. The cash cost for this initiative was $492 reflecting primarily one-time severance and other employee-related termination benefits incurred during the fourth quarter of 2022. Subsequent to year end, on March 16, 2023 (see Note 19 to the Company’s consolidated financial statements), we announced a second restructuring plan further reducing recurring costs and identifying cost savings that we expect to result in an estimated annual savings of an additional $8,000 based on an estimated reduction of an additional 40 personnel at an estimated cash cost of approximately $700 to be recognized in the first quarter of 2023. After considering all available evidence, we determined that, based on our cost reduction measures, our current positive working capital will be sufficient to meet our capital requirements for a period of at least twelve months from the date that our December 31, 2022 financial statements are issued. We believe our restructuring plans alleviate the substantial doubt about our ability to continue as a going concern within one year of the date these financial statements are issued. Management will continue to evaluate our liquidity and capital resources.
Upon the closing of the Business Combination, Leafly issued the 2022 Notes, which provided incremental funding for our operations. Note 11 to our consolidated financial statements within this Annual Report provides additional information regarding the 2022 Notes. As discussed under “— Business Overview” above, the Company announced a restructuring plan on October 18, 2022, which along with other cost cutting measures, the Company estimates will reduce annual operating costs by approximately $16,000.
We believe that our capital resources are sufficient to fund our operations for at least the following 12 months.
67
Nasdaq Notifications of Noncompliance
On October 28, 2022, we received a notice from the Nasdaq staff informing us that Leafly was not in compliance with the $50 million minimum market value requirement (“Market Value Requirement”) for continued listing on the Nasdaq Global Market (“Global Market”) and that we have until April 26, 2023 to regain compliance. We do not believe Leafly will regain compliance with the Market Value Requirement before April 26, 2023. Instead, we believe Leafly will meet the applicable continued listing requirements for the Nasdaq Capital Market (“Capital Market”), and we intend to apply to transfer the listing of Leafly’s common stock to the Capital Market before April 26, 2023. If our application is approved prior to the deadline, such transfer would resolve the minimum market value deficiency, however, there can be no assurance Nasdaq staff would grant our application. See “Risk Factors — Our shares of common stock are listed on Nasdaq, but we cannot guarantee that we will be able to satisfy the applicable listing standards going forward.”
On November 2, 2022, we received another notice from the Nasdaq staff informing us that Leafly was not in compliance with the Nasdaq’s $1.00 minimum bid price requirement for continued listing on the Global Market and that we have until May 1, 2023 to regain compliance. To regain compliance, the closing bid price of Leafly’s common stock must be $1.00 per share or more for a minimum of ten consecutive business days at any time before May 1, 2023. To cure the bid price issue, we intend to effect a reverse stock split, subject to stockholder approval at our annual meeting later this year. Given the timing, we do not expect Leafly will regain compliance with the minimum bid price requirement by May 1, 2023, and after the compliance date passes, we expect to receive a notice from Nasdaq staff informing us that Leafly’s securities would be subject to delisting. In the event of such a notification, we intend to appeal, and in support of such appeal, expect to submit our plan to complete a reverse stock split to cure the minimum bid price deficiency within 180 calendar days of any such delisting notice. We understand that the Nasdaq appeals panel may grant additional time (up to 180 days) for a company to cure a bid price deficiency when the compliance plan demonstrates, like we expect our plan will, that the company will cure a bid price issue through a reverse stock split within 180-days of the delisting notice. There can be no assurances any appeal we may need to make will be granted, and if not granted, we believe Leafly would be delisted from Nasdaq. See “Risk Factors — Our shares of common stock are listed on Nasdaq, but we cannot guarantee that we will be able to satisfy the applicable listing standards going forward.”
Off-Balance Sheet Arrangements
We did not have any off-balance sheet arrangements as of December 31, 2022.
Contractual Obligations
Other than our 2022 Notes (see Note 11 to our consolidated financial statements), we do not have any long-term debt, lease obligations or other long-term liabilities. We have entered into several multi-year licensing and administration agreements in the ordinary course of business, the cost of which are reflected within general and administrative expense within our statements of operations.
Related Party Relationships
See Note 15 to our consolidated financial statements within this Annual Report for information on the Company's related party relationships and transactions.
Critical Accounting Estimates
The preparation of financial statements and related disclosures in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and income and expenses during the periods reported. Actual results could materially differ from those estimates.
68
We believe that of our significant accounting policies described in Note 2, “Basis of Presentation and Significant Accounting Policies”, in the Notes to Consolidated Financial Statements included in Part II, Item 8 — “Financial Statements and Supplementary Data”, the critical accounting estimates, assumptions, and judgments that have the most significant impact on our consolidated financial statements are described below (references to Notes refer to the aforementioned notes to the Consolidated Financial Statements).
Valuations
Derivative Liabilities
As of December 31, 2022, derivative liabilities totaled $438 and consisted of derivative liabilities for our private warrants (Note 13), escrow shares and stockholder earn-out rights (Note 12). At the time of the Merger on February 4, 2022, we recorded aggregate derivative liabilities of $51,085 including a derivative liability associated with the forward share purchase agreements, which were settled in the third quarter of 2022 (Note 13). We measure derivative liabilities at fair value at each reporting date until settlement with the re-measurement gain or loss being recognized immediately in net income (loss). We calculate fair value of the derivative liabilities using either a Monte Carlo simulation or the Black-Scholes model, as appropriate. Significant assumptions are used in the valuation of derivative liabilities, including the expected term, volatility and our stock price. The assumptions used in computing the fair value of derivative liabilities reflect our best estimates, but involve uncertainties relating to market and other conditions, many of which are outside of our control. For a discussion of the fair value inputs, refer to Note 18 “Fair Value Measurements” to the consolidated financial statements. For the year ended December 31, 2022, the impact of the remeasurement and settlement of these derivative liabilities was a gain of $36,823.
2022 Notes
As of December 31, 2022, the net carrying amount of the 2022 Notes was $28,863 with an estimated fair value of approximately $27,100. The fair value of the 2022 Notes was measured using the Bloomberg OVCV model and CNVI model which modifies the underlying OVCV program. These models incorporate inputs for volatility, Leafly’s stock price, time to maturity, the risk free rate and Leafly’s credit spread (Note 11). The assumptions used in computing the fair value of the 2022 Notes reflect our best estimates, but involve uncertainties relating to market and other conditions, many of which are outside of our control. Changes in the fair value of the 2022 Notes will not impact their carrying value in the Company’s consolidated financial statements, but could be indicative of our ability to obtain similar financing.
Income Taxes
We record deferred tax assets and liabilities based on the net tax effects of tax credits, operating loss carryforwards, and temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes compared to the amounts used for income tax purposes. We regularly review our deferred tax assets for recoverability with consideration for such factors as historical losses, projected future taxable income, and the expected timing of the reversals of existing temporary differences. A valuation allowance is recorded when it is more likely than not that some portion or all of the deferred tax assets will not be realized. Management believes the U.S deferred tax assets, based largely on the history of U.S. tax losses, warrant a full valuation allowance based on the weight of available negative evidence. At December 31, 2022, we had recognized deferred tax assets of $35,788 net of valuation allowances of $35,780 (Note 10).
Stock-Based Compensation
69
Stock-based compensation expense represents the cost of the grant date fair value of stock option, restricted stock unit or performance stock unit grants, estimated in accordance with the applicable accounting guidance, recognized on a straight-line basis over the vesting period. The fair value of stock options with service or performance conditions is estimated on the date of grant using the Black-Scholes option pricing model, inclusive of assumptions for risk-free interest rates, expected dividends, expected terms, expected volatility, and the fair value of the underlying stock. The fair value of restricted stock awards with service or performance conditions is estimated on the date of grant based on the market value of the Company’s common stock. The fair value of stock options and restricted stock units with market-based conditions is estimated on the date of grant using a Monte Carlo simulation model, inclusive of assumptions for risk-free interest rates, expected terms, expected volatility, and the market target. Significant changes to the key assumptions underlying the factors used could result in different fair values of stock options at each valuation date, which could result in different stock-based compensation expense. Stock-based compensation expense for the year ended December 31, 2022 was $3,917, which included $1,366 related to the modification in 2022 of market/performance-based options granted to Leafly’s CEO in 2021. The Company primarily granted service-based RSUs to its employees and directors during 2022 with a total fair value of $2,850 for which there was little requirement for estimation. For senior management, the Company also awarded 820 PSUs with performance and market conditions and a total fair value of $138. The Company also awarded 102 service-based options to employees during 2022 with a total fair value of $118 (Note 14).
Allowance for Credit Losses
Allowance for credit risk for accounts receivables and contract assets is established based upon historical experience and loss patterns, the number of days that billings are past due, an evaluation of the potential risk of loss associated with delinquent accounts and known delinquent accounts. The allowance reflects our best estimate of probable losses associated with the accounts receivable balance. It is based upon historical experience and loss patterns, the number of days that billings are past due, an evaluation of the potential risk of loss associated with delinquent accounts, and known delinquent accounts. When new information becomes available that allows us to estimate the allowance more accurately, we makes an adjustment, which is considered a change in accounting estimate. If our estimate of uncollectible accounts is too low, credit loss expense may increase in future periods, and if it is too high, credit loss expense may decrease in future periods. At December 31, 2022, the allowance for credit loss was $908 and during the year ended December 31, 2022, we recognized a provision for credit loss of $1,378 and write-offs of uncollected accounts of $2,318 (Note 5).
Capitalized Software
Leafly capitalizes certain costs related to acquisition and development of software for internal use, including internal labor costs incurred during development. The Company begins to capitalize these costs when planning and design efforts are successfully completed and development is ready to commence, management has authorized and committed project funding; and it is probable that the project will be completed and the software will be used as intended. The Company capitalizes certain implementation costs incurred related to cloud computing arrangements that are service contracts. The Company places capitalized software assets into service and commences amortization when the asset is substantially complete and ready for its intended use. Once placed into service, the Company capitalizes qualifying costs of specified upgrades or enhancements to the assets when the upgrade or enhancement will result in new or additional functionality. The Company’s estimated useful life for capitalized software is three years, and amortization is calculated using the straight-line method. Significant judgement is required to determine the amounts capitalized and the service periods. During the year ended December 31, 2022, Leafly capitalized internal-use software costs totaling $2,310 (Note 6).
70
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Leafly is a smaller reporting company as defined by Rule 12b-2 of the Exchange Act and is not required to provide the information otherwise required with respect to market risk.
71
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
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Page |
Report of Independent Registered Public Accounting Firm |
|
74 |
|
75 |
|
76 |
|
78 |
|
79 |
72
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Directors of
Leafly Holdings, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Leafly Holdings, Inc. (the “Company”) as of December 31, 2022 and 2021, the related consolidated statements of operations, changes in stockholders’ deficit and cash flows for each of the two years in the period ended December 31, 2022 and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2022 in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
We have served as the Company’s auditor since 2019.
/s/ Marcum llp
Marcum llp
San Jose, CA
March 28, 2023
PCAOB ID # 688
73
LEAFLY HOLDINGS, INC
CONSOLIDATED BALANCE SHEETS
(in thousands, except per share amounts)
|
As of December 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
ASSETS |
|
|
|
|
|
||
Current assets |
|
|
|
|
|
||
Cash and cash equivalents |
$ |
24,594 |
|
|
$ |
28,565 |
|
Accounts receivable, net of allowance for doubtful accounts of $908 and $1,848, respectively |
|
3,298 |
|
|
|
2,958 |
|
Deferred transaction costs |
|
— |
|
|
|
2,840 |
|
Prepaid expenses and other current assets |
|
1,927 |
|
|
|
1,347 |
|
Restricted cash |
|
608 |
|
|
|
130 |
|
Total current assets |
|
30,427 |
|
|
|
35,840 |
|
Property, equipment, and software, net |
|
2,285 |
|
|
|
313 |
|
Total assets |
$ |
32,712 |
|
|
$ |
36,153 |
|
|
|
|
|
|
|
||
LIABILITIES AND STOCKHOLDERS' DEFICIT |
|
|
|
|
|
||
Current liabilities |
|
|
|
|
|
||
Accounts payable |
$ |
1,625 |
|
|
$ |
3,048 |
|
Accrued expenses and other current liabilities |
|
6,235 |
|
|
|
8,325 |
|
Deferred revenue |
|
1,958 |
|
|
|
1,975 |
|
Current portion of convertible promissory notes, net |
|
— |
|
|
|
31,377 |
|
Total current liabilities |
|
9,818 |
|
|
|
44,725 |
|
|
|
|
|
|
|
||
Non-current liabilities |
|
|
|
|
|
||
Non-current portion of convertible promissory notes, net |
|
28,863 |
|
|
|
— |
|
Private warrants derivative liability |
|
182 |
|
|
|
— |
|
Escrow shares derivative liability |
|
52 |
|
|
|
— |
|
Stockholder earn-out rights derivative liability |
|
204 |
|
|
|
— |
|
Total non-current liabilities |
|
29,301 |
|
|
|
— |
|
Total liabilities |
|
39,119 |
|
|
|
44,725 |
|
|
|
|
|
|
|
||
|
|
|
|
|
|||
|
|
|
|
|
|
||
Stockholders' deficit |
|
|
|
|
|
||
Preferred stock: $0.0001 par value; 5,000 and 6,578 authorized; 0 and 6,140 issued and outstanding; aggregate liquidation preference of $0 and $19,436 at December 31, 2022 and December 31, 2021, respectively |
|
— |
|
|
|
1 |
|
Common stock: $0.0001 par value; 200,000 and 69,361 authorized; 43,275 issued; and 25,086 issued and outstanding at December 31, 2022 and December 31, 2021, respectively |
|
4 |
|
|
|
3 |
|
Treasury stock: 3,081 and 0 shares held at December 31, 2022 and December 31, 2021, respectively |
|
(31,663 |
) |
|
|
— |
|
Additional paid-in capital |
|
89,952 |
|
|
|
61,194 |
|
Accumulated deficit |
|
(64,700 |
) |
|
|
(69,770 |
) |
Total stockholders' deficit |
|
(6,407 |
) |
|
|
(8,572 |
) |
Total liabilities and stockholders' deficit |
$ |
32,712 |
|
|
$ |
36,153 |
|
|
|
|
|
|
|
||
See Notes to Consolidated Financial Statements.
74
LEAFLY HOLDINGS, INC
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
|
|
Year Ended December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
Revenue |
|
$ |
47,363 |
|
|
$ |
43,036 |
|
Cost of revenue |
|
|
5,860 |
|
|
|
4,983 |
|
Gross profit |
|
|
41,503 |
|
|
|
38,053 |
|
Operating expenses |
|
|
|
|
|
|
||
Sales and marketing |
|
|
27,080 |
|
|
|
19,640 |
|
Product development |
|
|
14,988 |
|
|
|
13,896 |
|
General and administrative |
|
|
27,440 |
|
|
|
15,142 |
|
Total operating expenses |
|
|
69,508 |
|
|
|
48,678 |
|
Loss from operations |
|
|
(28,005 |
) |
|
|
(10,625 |
) |
Interest expense, net |
|
|
(2,811 |
) |
|
|
(1,349 |
) |
Change in fair value of derivatives |
|
|
36,823 |
|
|
|
— |
|
Other expense, net |
|
|
(937 |
) |
|
|
(50 |
) |
Net income (loss) |
|
$ |
5,070 |
|
|
$ |
(12,024 |
) |
|
|
|
|
|
|
|
||
Net income (loss) per share: |
|
|
|
|
|
|
||
Basic |
|
$ |
0.14 |
|
|
$ |
(0.48 |
) |
Diluted |
|
$ |
0.13 |
|
|
$ |
(0.48 |
) |
|
|
|
|
|
|
|
||
Weighted average shares outstanding: |
|
|
|
|
|
|
||
Basic |
|
|
35,080 |
|
|
|
24,882 |
|
Diluted |
|
|
37,740 |
|
|
|
24,882 |
|
See Notes to Consolidated Financial Statements.
75
LEAFLY HOLDINGS, INC
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ DEFICIT
(in thousands)
|
Year Ended December 31, 2022 |
|
|||||||||||||||||||||||||||||||||
|
Preferred Stock |
|
|
Common Stock |
|
|
Treasury Stock |
|
|
Additional Paid-In Capital |
|
|
Accumulated Deficit |
|
|
Total |
|
||||||||||||||||||
|
Shares |
|
|
Amount |
|
|
Shares |
|
|
Amount |
|
|
Shares |
|
|
Amount |
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Balance at January 1, 2022 |
|
6,140 |
|
|
$ |
1 |
|
|
|
25,086 |
|
|
$ |
3 |
|
|
|
— |
|
|
$ |
— |
|
|
$ |
61,194 |
|
|
$ |
(69,770 |
) |
|
$ |
(8,572 |
) |
Net income |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
5,070 |
|
|
|
5,070 |
|
Stock-based compensation |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
3,917 |
|
|
|
— |
|
|
|
3,917 |
|
Issuance of Common Stock upon |
|
— |
|
|
|
— |
|
|
|
309 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Exercise of stock options |
|
— |
|
|
|
— |
|
|
|
144 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
158 |
|
|
|
— |
|
|
|
158 |
|
Conversion of 2021 Notes into Common Stock at Merger |
|
— |
|
|
|
— |
|
|
|
4,128 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
33,024 |
|
|
|
— |
|
|
|
33,024 |
|
Conversion of Preferred Stock into Common Stock at Merger |
|
(6,140 |
) |
|
|
(1 |
) |
|
|
6,140 |
|
|
|
1 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Merger and recapitalization, net of fees |
|
— |
|
|
|
— |
|
|
|
2,007 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
27,997 |
|
|
|
— |
|
|
|
27,997 |
|
Stockholder contribution for debt issuance costs |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
924 |
|
|
|
— |
|
|
|
924 |
|
Escrow shares derivative liability |
|
— |
|
|
|
— |
|
|
|
1,625 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(6,867 |
) |
|
|
— |
|
|
|
(6,867 |
) |
Private warrants derivative liability |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(3,916 |
) |
|
|
— |
|
|
|
(3,916 |
) |
Forward share purchase agreement derivative liability |
|
— |
|
|
|
— |
|
|
|
3,861 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(14,170 |
) |
|
|
— |
|
|
|
(14,170 |
) |
Stockholder earnout rights derivative liability |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(26,131 |
) |
|
|
— |
|
|
|
(26,131 |
) |
Settlement of forward share purchase agreement derivative liability |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(17,841 |
) |
|
|
— |
|
|
|
(17,841 |
) |
Purchase of treasury stock |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(3,081 |
) |
|
|
(31,663 |
) |
|
|
31,663 |
|
|
|
— |
|
|
|
— |
|
Shares canceled |
|
— |
|
|
|
— |
|
|
|
(25 |
) |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Balance at December 31, 2022 |
|
— |
|
|
$ |
— |
|
|
|
43,275 |
|
|
$ |
4 |
|
|
|
(3,081 |
) |
|
$ |
(31,663 |
) |
|
$ |
89,952 |
|
|
$ |
(64,700 |
) |
|
$ |
(6,407 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
76
LEAFLY HOLDINGS, INC
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ DEFICIT
(in thousands)
|
Year Ended December 31, 2021 |
|
|||||||||||||||||||||||||
|
Series A Preferred Stock |
|
|
Class 1, Class 2, and Class 3 Common Stock |
|
|
Additional Paid-In Capital |
|
|
Accumulated Deficit |
|
|
Total |
|
|||||||||||||
|
Shares |
|
|
Amount |
|
|
Shares |
|
|
Amount |
|
|
|
|
|
|
|
|
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Balance at January 1, 2021 |
|
6,140 |
|
|
$ |
1 |
|
|
|
24,752 |
|
|
$ |
2 |
|
|
$ |
59,812 |
|
|
$ |
(57,746 |
) |
|
$ |
2,069 |
|
Net loss |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
(12,024 |
) |
|
|
(12,024 |
) |
Stock-based compensation |
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
1,022 |
|
|
|
— |
|
|
|
1,022 |
|
Exercise of stock options |
|
— |
|
|
|
— |
|
|
|
334 |
|
|
|
1 |
|
|
|
360 |
|
|
|
— |
|
|
|
361 |
|
Balance at December 31, 2021 |
|
6,140 |
|
|
$ |
1 |
|
|
|
25,086 |
|
|
$ |
3 |
|
|
$ |
61,194 |
|
|
$ |
(69,770 |
) |
|
$ |
(8,572 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
See Notes to Consolidated Financial Statements.
77
LEAFLY HOLDINGS, INC
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
|
Year Ended December 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
Cash flows from operating activities |
|
|
|
|
|
||
Net income (loss) |
$ |
5,070 |
|
|
$ |
(12,024 |
) |
Adjustments to reconcile net income (loss) to net cash used in operating activities: |
|
|
|
|
|
||
Depreciation and amortization |
|
449 |
|
|
|
253 |
|
Stock-based compensation expense |
|
3,917 |
|
|
|
1,022 |
|
Bad debt expense, net of recoveries |
|
1,378 |
|
|
|
1,177 |
|
Noncash lease costs |
|
— |
|
|
|
230 |
|
Noncash amortization of debt discount |
|
506 |
|
|
|
— |
|
Noncash interest expense associated with convertible debt |
|
243 |
|
|
|
1,370 |
|
Noncash change in fair value of derivatives |
|
(36,823 |
) |
|
|
— |
|
Other |
|
46 |
|
|
|
44 |
|
Changes in operating assets and liabilities: |
|
|
|
|
|
||
Accounts receivable |
|
(1,718 |
) |
|
|
(1,802 |
) |
Prepaid expenses and other current assets |
|
(580 |
) |
|
|
(283 |
) |
Accounts payable |
|
424 |
|
|
|
(397 |
) |
Accrued expenses and other current liabilities |
|
(983 |
) |
|
|
3,172 |
|
Deferred revenue |
|
(17 |
) |
|
|
390 |
|
Net cash used in operating activities |
|
(28,088 |
) |
|
|
(6,848 |
) |
|
|
|
|
|
|
||
Cash flows from investing activities |
|
|
|
|
|
||
Additions of property, equipment, and software |
|
(2,470 |
) |
|
|
(87 |
) |
Net cash used in investing activities |
|
(2,470 |
) |
|
|
(87 |
) |
|
|
|
|
|
|
||
Cash flows from financing activities |
|
|
|
|
|
||
Proceeds from exercise of stock options |
|
158 |
|
|
|
334 |
|
Proceeds from convertible promissory notes |
|
29,374 |
|
|
|
31,470 |
|
Proceeds from business combination placed in escrow and restricted |
|
39,032 |
|
|
|
— |
|
Trust proceeds received from recapitalization at closing |
|
582 |
|
|
|
— |
|
Repurchase of common stock and settlement of forward purchase agreements |
|
(31,303 |
) |
|
|
— |
|
Transaction costs associated with recapitalization |
|
(10,761 |
) |
|
|
(855 |
) |
Payments on related party payables |
|
(17 |
) |
|
|
(253 |
) |
Net cash provided by financing activities |
|
27,065 |
|
|
|
30,696 |
|
|
|
|
|
|
|
||
Net (decrease) increase in cash, cash equivalents, and restricted cash |
|
(3,493 |
) |
|
|
23,761 |
|
Cash, cash equivalents, and restricted cash, beginning of year |
|
28,695 |
|
|
|
4,934 |
|
Cash, cash equivalents, and restricted cash, end of year |
$ |
25,202 |
|
|
$ |
28,695 |
|
|
|
|
|
|
|
||
|
Year Ended December 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
Supplemental disclosure of non-cash financing activities: |
|
|
|
|
|
||
Transaction costs associated with recapitalization |
$ |
— |
|
|
$ |
1,985 |
|
Stockholder contribution for debt issuance costs |
|
924 |
|
|
|
— |
|
Repurchase of common stock in other accrued expenses |
|
360 |
|
|
|
— |
|
Conversion of promissory notes into common stock |
|
33,024 |
|
|
|
— |
|
Issuance of forward share purchase agreements |
|
14,170 |
|
|
|
— |
|
Issuance of private warrants |
|
3,916 |
|
|
|
— |
|
Issuance of sponsor shares subject to earn-out conditions |
|
6,867 |
|
|
|
— |
|
Issuance of stockholder earn-out rights |
|
26,131 |
|
|
|
— |
|
See Notes to Consolidated Financial Statements.
78
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(in thousands, except per share amounts)
NOTE 1 — Description of the Business and Merger Transaction
Description of the Business
Leafly Holdings, Inc. (“Leafly” or “the Company”) is a leading online cannabis discovery marketplace and resource for cannabis consumers. Leafly provides an information resource platform with a deep library of content, including detailed information about cannabis strains, retailers and current events. Leafly was incorporated in the state of Delaware on June 20, 2019 and is headquartered in Seattle, Washington.
The Company has three wholly-owned subsidiaries, Leafly Canada Ltd. (“Leafly Canada”), Leafly Deutschland GmbH and Leafly, LLC (“Legacy Leafly”). Legacy Leafly is the accounting predecessor of Leafly. The accompanying consolidated financial statements include the financial results of the Company and its wholly-owned subsidiaries.
Merger with Merida
On February 4, 2022, Leafly consummated the previously announced mergers and related transactions (collectively, the “Merger”) pursuant to the Agreement and Plan of Merger dated August 9, 2021 and amended on September 8, 2021 and on January 11, 2022 (as amended, the “Merger Agreement”). Legacy Leafly (formerly known as Leafly Holdings, Inc.) entered into the Merger Agreement with Merida Merger Corp. I (“Merida”), Merida Merger Sub, Inc., a Washington corporation (“Merger Sub I”), Merida Merger Sub II, LLC, a Washington limited liability company (“Merger Sub II” and, together with Merger Sub I, the “Merger Subs”). Merger Sub I merged with and into Legacy Leafly, with Legacy Leafly surviving as a wholly-owned subsidiary of Merida, and following the initial Merger and as part of a single integrated transaction with the initial Merger, Legacy Leafly merged with and into Merger Sub II, with Merger Sub II surviving as a wholly-owned subsidiary of Merida. As a result of these Mergers, Legacy Leafly became a wholly owned subsidiary of Merida and was renamed Leafly, LLC, Merida was renamed Leafly Holdings, Inc. (“New Leafly”), and the securityholders of Legacy Leafly became security holders of Merida. We sometimes refer to the Mergers described above and the other transactions contemplated by the Merger Agreement and the other agreements being entered into by Merida and Legacy Leafly in connection with the Mergers as the “Business Combination” and to Merida following the Business Combination as “New Leafly.”
While the legal acquirer in the Business Combination is Merida, for financial accounting and reporting purposes under U.S. GAAP, Legacy Leafly is the accounting acquirer with the Merger accounted for as a “reverse recapitalization.” A reverse recapitalization does not result in a new basis of accounting, and the financial statements of the combined entity represent the continuation of the financial statements of Legacy Leafly. Under this accounting method, Merida is treated as the “acquired” company and Legacy Leafly is the accounting acquirer, with the transaction treated as a recapitalization of Legacy Leafly. Merida’s assets, liabilities and results of operations were consolidated with Legacy Leafly’s beginning on the date of the Business Combination. Except for certain derivative liabilities, the assets and liabilities of Merida were recognized at historical cost (which is consistent with carrying value) and were not material, with no goodwill or other intangible assets recorded. The derivative liabilities, which are discussed in Notes 12 and 13, were recorded at fair value. The consolidated assets, liabilities, and results of operations of Legacy Leafly became the historical financial statements, and operations prior to the closing of the Business Combination presented for comparative purposes are those of Legacy Leafly. Pre-Merger shares of common stock and preferred stock were converted to shares of common stock of the combined company using the conversion ratio of 0.3283 and for comparative purposes, the shares and net loss per share of Legacy Leafly, prior to the Merger, have been retroactively restated using the conversion ratio.
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The following table provides a summary of the significant sources and uses of cash related to the closing of the Business Combination on February 4, 2022 and the cash received from escrow through December 31, 2022:
Amount in Merida's trust account (“the Trust”) at closing |
|
$ |
90,824 |
|
Total payment to Merida public redeeming stockholders |
|
|
49,466 |
|
Amount available after paying Merida redeeming stockholders |
|
|
41,358 |
|
Cash to escrow for Forward Share Purchase Agreements (see Note 13) |
|
|
39,032 |
|
Remaining balance |
|
|
2,326 |
|
Merida expenses paid from the Trust at closing |
|
|
1,744 |
|
Net cash from the Trust to Leafly at closing |
|
|
582 |
|
Cash received from escrow February 4, 2022 to December 31, 2022 |
|
|
8,089 |
|
Net cash from the Trust to Leafly as of December 31, 2022 |
|
$ |
8,671 |
|
The following table provides a reconciliation of the common shares related to the Merger transaction:
Merida public stockholders |
|
|
4,160 |
|
Merida initial stockholders (including Sponsor and EarlyBirdCapital) |
|
|
1,667 |
|
Holders of 2022 Notes (see Note 11) |
|
|
38 |
|
Shares held by Sponsor in escrow that are subject to earn-out conditions (see Note 12) |
|
|
1,625 |
|
Total Merida |
|
|
7,490 |
|
Legacy Leafly existing securityholders |
|
|
35,434 |
|
Total shares outstanding as of February 4, 2022 |
|
|
42,924 |
|
All shares in this table, except the shares held by Merida public stockholders and holders of 2022 Notes, were subject to restrictions as to trading through August 3, 2022 (“Lock Up Restrictions”).
NOTE 2 — Basis of Presentation and Significant Accounting Policies
Basis of Presentation
The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”). All intercompany balances and transactions have been eliminated upon consolidation.
Going Concern Evaluation
Under the rules of ASC Subtopic 205-40 “Presentation of Financial Statements-Going Concern” (“ASC 205-40”), reporting companies are required to evaluate whether conditions and/or events raise substantial doubt about their ability to meet their future financial obligations as they become due within one year after the date that the financial statements are issued. This evaluation takes into account a company’s current available cash and projected cash needs over the one-year evaluation period but may not consider things beyond its control. Leafly has incurred recurring operating losses, used cash from operations, and relied on the capital raised in its merger transaction to continue ongoing operations. These conditions, when considered in the aggregate, raise substantial doubt about Leafly’s ability to continue as a going concern within one year of the date these financial statements are issued.
After considering all available evidence, Leafly’s management determined that, based on the cost reduction measures outlined above, Leafly’s current positive working capital will be sufficient to meet its capital requirements for a period of at least twelve months from the date that these December 31, 2022 financial statements are issued.
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Reclassifications
Certain prior period amounts have been reclassified to conform to the current period presentation. These reclassifications had no effect on the reported net income (loss).
Seasonality
We may experience seasonality in our business, which we believe has moderate impacts on our overall revenue. In certain years, we've seen seasonal fluctuations that coincide with either federal holidays, generally in the fourth quarter, or industry holidays and events, generally in the spring. Our industry and business history is limited and therefore we can't be certain that these are known trends or that other trends may develop.
Emerging Growth Company Status
Leafly is an emerging growth company (“EGC”), as defined in the Jumpstart Our Business Startups Act (“JOBS Act”). Under the JOBS Act, EGCs can delay adopting new or revised accounting standards issued until such time as those standards apply to private companies. The Company has elected to use this extended transition period. In providing this relief, the JOBS Act does not preclude the Company from adopting a new or revised accounting standard earlier than the time that such standard applies to private companies. Leafly will continue to use this relief until the earlier of the date that it (a) is no longer an emerging growth company or (b) affirmatively and irrevocably opts out of the extended transition period provided in the JOBS Act.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities, and reported amounts of revenue and expenses in the consolidated financial statements and accompanying notes. On an ongoing basis, management evaluates its estimates. Such estimates include those related to the fair value of derivative liabilities; the allowance for doubtful accounts; the valuation allowance for deferred income tax assets; the fair value of the convertible promissory notes; the estimate of capitalized software costs and useful life of capitalized software; and the fair value of equity issuances. Management bases its estimates on historical experience, knowledge of current events and actions it may undertake in the future that management believes to be reasonable under the circumstances. Actual results may differ from these estimates and assumptions.
Foreign Currency
The functional currency for the Company’s foreign subsidiaries is the U.S. dollar. The assets and liabilities of our foreign subsidiaries are remeasured to U.S. dollars at current or historic exchange rates, as appropriate. Revenues and expenses are remeasured to U.S. dollars using historic or average monthly exchange rates, as appropriate. Remeasurement gains and losses are included in other income (expense) on the Consolidated Statements of Operations. The assets, liabilities, revenues, and expenses of our foreign subsidiaries are individually less than 10% of our respective consolidated amounts. The Canadian dollar is our primary foreign currency. Remeasurement gains and losses have not been significant, and therefore we do not present separately translation adjustments or other comprehensive income/(loss).
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Foreign Operations
Operations outside the U.S. comprise primarily Leafly Canada’s activities in Canada. Foreign operations are subject to risks inherent in operating under different legal systems and various political and economic environments. Among the risks are changes in existing tax laws, possible limitations on foreign investment and income repatriation, government price or foreign exchange controls, and restrictions on currency exchange. Net assets of our foreign subsidiaries were $1,262 and $1,562 as of December 31, 2022 and 2021, respectively.
Cash, Cash Equivalents, and Restricted Cash
The Company considers all highly liquid investments with original maturities of three months or less at the time of purchase to be cash equivalents. The Company may hold cash balances that exceed the insured limits by the Federal Deposit Insurance Corporation (“FDIC”), National Credit Union Administration (“NCUA”), or the Canada Deposit Insurance Corporation (“CDIC”) as discussed further below. Restricted cash as of December 31, 2022 and 2021 includes collateral held at the Company’s financial institution and its credit card processing company. Restricted cash as of December 31, 2022 also includes cash maintained in escrow related to certain derivatives (see Note 3). The fair value of cash, cash equivalents, and restricted cash approximate their carrying value.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to concentration of credit risk consist of cash and cash equivalents, restricted cash and accounts receivable. The Company’s cash and cash equivalents and restricted cash are deposited with major financial institutions primarily in the U.S. and Canada. At times, deposits in financial institutions may be in excess of the amount of insurance provided on such deposits by the FDIC, NCUA or CDIC. At December 31, 2022 and 2021, cash and cash equivalents totaling $574 and $579, respectively, held in domestic and foreign institutions, are insured within the limitations set by the FDIC, NCUA or CDIC, as applicable. To date, the Company has not experienced any losses on its cash deposits.
Accounts receivable are unsecured and the Company generally does not require collateral from its customers. The Company evaluates the collectability of its accounts receivable and provides an allowance for potential credit losses as necessary.
Accounts Receivable, Net and Payment Terms
The Company records accounts receivable at the time of invoicing the customer. Payment terms and conditions vary by contract type and the service being provided. Fees are usually non-refundable. Subscription-based services are typically invoiced monthly in advance and impression-based services are typically invoiced monthly in arrears. Customer payment terms vary by arrangement although payments are typically due within 30 days of invoicing. The timing between the satisfaction of the performance obligations and the payment is not significant and the Company currently does not have any significant financing components or significant payment terms.
Allowance for Doubtful Accounts
The Company maintains an allowance for doubtful accounts receivable (Note 5). The allowance reflects the Company’s best estimate of probable losses associated with the accounts receivable balance. It is based upon historical experience and loss patterns, the number of days that billings are past due, an evaluation of the potential risk of loss associated with delinquent accounts, and known delinquent accounts. When new information becomes available that allows the Company to estimate the allowance more accurately, it makes an adjustment, which is considered a change in accounting estimate. The carrying value of accounts receivable approximates their fair value due to their short-term nature.
Costs to Obtain Contracts with Customers
Certain sales incentive compensation costs are incremental costs to obtain the related customer contract. For contract costs with amortization periods of more than 12 months, these costs are capitalized in the period in which they are incurred and amortized on a straight-line basis over the expected customer life of the associated contract. There were no capitalized costs
82
to obtain contracts with customers in 2022 or 2021. For contract costs with amortization periods of less than 12 months, the Company applies a practical expedient to expense such costs as incurred.
Property and Equipment
Property and equipment consists of furniture, equipment, and leasehold improvements and are stated at cost less accumulated depreciation and amortization. Depreciation is computed using the straight-line method over the estimated useful lives of the assets, generally three to five years. Amortization of leasehold improvements is computed using the straight-line method over the shorter of the remaining lease term or the estimated useful life of the improvements.
Capitalized Software
The Company capitalizes certain costs related to acquisition and development of software for internal use, including internal labor costs incurred during development. The Company begins to capitalize these costs when planning and design efforts are successfully completed and development is ready to commence, management has authorized and committed project funding; and it is probable that the project will be completed and the software will be used as intended. Costs incurred during planning and design, together with costs incurred for training and maintenance, are expensed as incurred and recorded in product development expense. The Company capitalizes certain implementation costs incurred related to cloud computing arrangements that are service contracts. Such costs are amortized on a straight-line basis over the term of the associated hosting arrangement plus any reasonably certain renewal period. Any capitalized amounts related to such arrangements are recorded within prepaid expense and other current assets and within non-current assets on the consolidated balance sheets. The Company places capitalized software assets into service and commences amortization when the asset is substantially complete and ready for its intended use. Once placed into service, the Company capitalizes qualifying costs of specified upgrades or enhancements to the assets when the upgrade or enhancement will result in new or additional functionality.
The Company’s estimated useful life for capitalized software is three years, and amortization is calculated using the straight-line method.
Leases
The Company categorizes leases with contractual terms longer than 12 months as either operating or finance. Finance leases are generally those leases that substantially utilize or pay for the entire asset over its estimated life. All other leases are categorized as operating leases. Costs associated with operating lease assets are recognized on a straight-line basis within operating expenses over the term of the lease.
Lease liabilities are recognized at the present value of the fixed lease payments, reduced by landlord incentives using an estimated discount rate based on similarly secured borrowings available to us. Lease assets are recognized based on the initial present value of the fixed lease payments, reduced by landlord incentives, plus any direct costs from executing the leases or lease prepayments.
The Company does not recognize its renewal options as part of its right-of-use assets and lease liabilities until it is reasonably certain that it will exercise such renewal options.
The Company has elected to combine lease and non-lease components; however, the Company currently has no leases requiring analysis of lease components.
The Company did not have any as of December 31, 2022 or 2021.
Accounting for Impairment of Long-Lived Assets
The Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets held and used is measured by comparison of the carrying amount of an asset to future net cash flows expected to be generated by the asset. Any impairment to be
83
recognized is measured as the amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of their carrying cost or the fair value less the cost to sell.
Stock Repurchases
The Company accounts for repurchases of its common stock by recording the cost to repurchase those shares to treasury stock, a separate component of stockholders' equity. Upon retirement, the carrying amount of treasury stock is reduced with a corresponding reduction to par value of common stock, with any excess of the cost incurred to repurchase shares over their par value recorded as an adjustment to accumulated deficit on the date of retirement.
Revenue from Contracts with Customers
The Company generates revenue by providing customers with online software and advertising services, primarily through subscription agreements. Leafly also provides advertising on a per-impression delivered basis.
The Company recognizes revenue in accordance with Accounting Standards Codification (“ASC”) 606, the core principle of which is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled to receive in exchange for those goods or services. To achieve this core principle, five basic criteria must be met before revenue can be recognized:
Leafly provides to its clients a platform to engage with and advertise to interested consumers. This subscription-based platform is delivered by way of a hosted, web-based application or Software as a Service (SaaS) delivery model. Customers of Leafly never take possession of any software as it is hosted in the cloud.
All the Company’s revenue and trade receivables are generated from contracts with customers. Revenue is recognized when control of the promised services is transferred to the Company’s customers at an amount that reflects the consideration the Company expects to be entitled to in exchange for those services. Customer arrangements are evidenced by written or electronic acceptance of a contract describing the services to be delivered, the timing, and the pricing.
Performance Obligations — A performance obligation is a promise in a contract to transfer a distinct good or service to the customer and is the unit of account under ASC Topic 606. The transaction price is allocated to each distinct performance obligation and is recognized as revenue when, or as, the performance obligation is satisfied by transferring the promised good or service to the customer. The Company identifies and tracks the performance obligations at contract inception so that the Company can monitor and account for the performance obligations over the life of the contract. The Company does not disclose the value of unsatisfied performance obligations for (i) contracts with an original expected length of one year or less and (ii) contracts for which the amount of revenue it recognizes is equal to the amount which the Company has a right to invoice.
The Company’s Retail contracts typically contain a single performance obligation consisting of the hosted software in a multi-tenant environment where support and maintenance are included for customers. Retail contracts with multiple performance obligations contain additional services offerings, either in the form of subscription or one-time service. Additional Retail service offerings change over time but currently include additional mapping, mobile, homepage, and video features, as well as sponsorships, premium placement, pick-up lead generation, insights, and customer communications, including emails and mobile push notifications. Brands customers can purchase any number and combination of services; none of the Brands services require the purchase of another Brands service.
84
For contracts with multiple performance obligations where the contracted price differs from the standalone selling price (SSP) for any distinct good or service, the Company may be required to allocate the transaction price to each performance obligation using its best estimate for the SSP. The portion of our revenue for which SSP requires estimation has been immaterial.
A majority of the customer contracts have performance obligations that the Company satisfies over time, and revenue is recognized by consistently applying a method of measuring progress toward satisfaction of that performance obligation. Some contracts contain a performance obligation that the Company satisfies at a point in time upon delivery of the specified services. Revenues recognized over time are associated with software subscriptions, display ads and audience extension. Revenues recognized at a point in time are associated with branded content and channel advertising.
Practical Expedients and Exemptions—There are several practical expedients and exemptions allowed under ASC Topic 606 that impact the timing of revenue recognition and the Company’s disclosures. Below is a list of practical expedients applied by the Company:
Contract Balances—The timing of revenue recognition may differ from the timing of invoicing to customers and these timing differences result in contract assets, or contract liabilities (deferred revenue) on the Company’s consolidated balance sheets. The Company mainly provides subscription services and bills its customers upfront for any services to be performed. As such, the Company did not have any contracts assets as of, or during the years ended, December 31, 2022 or 2021.
Contract Liabilities (Deferred Revenue)—The Company records Deferred Revenue when the Company has received or has the right to receive consideration but has not yet transferred goods or services to the customer. The Company typically invoices its customers for online software on a monthly, quarterly, or annual basis, with payment due 30 days from the date of the invoice. Unpaid invoice amounts for non-cancelable services starting in future periods are included in accounts receivable and deferred revenue.
Cost of Revenue
Cost of revenue consists primarily of credit card processing fees, third-party professional services, data licensing costs, website infrastructure including hosting costs, and salaries and employee benefits for the engineering teams responsible for operating the Company’s online software platform.
Product Development
Product development expenses primarily consist of professional services fees, allocations of various overhead and occupancy costs, and salaries and employee benefits for the engineering teams responsible for developing new products or services or significant improvements to existing products or services. Product development costs that do not meet the criteria for capitalization are expensed as incurred.
Income Taxes
The Company accounts for income taxes using the asset and liability method. Under this method, deferred income tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates applicable to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recorded against the Company’s deferred income tax assets if based on the weight of all available evidence, it is more likely than not
85
that some or all of the deferred tax assets will not be realized. The Company periodically reviews its operations and significant income tax positions for uncertainties and areas of judgment in the application of complex income tax regulations in several tax jurisdictions and provides a liability for potential income taxes, where applicable. The Company includes any interest and penalties related to unrecognized tax benefits within the provision for taxes.
The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was enacted March 27, 2020. Among the business provisions, the CARES Act provided for various payroll tax incentives, changes to net operating loss carryback and carryforward rules, business interest expense limitation increases, and bonus depreciation on qualified improvement property. Additionally, the Consolidated Appropriations Act of 2021 was signed on December 27, 2020, which provided additional COVID relief provisions for businesses. The Company has evaluated the impact of both Acts and has determined that any impact is not material to its financial statements.
As of December 31, 2022, the Company asserts to indefinitely reinvest undistributed earnings to ensure sufficient working capital and further expansion of existing operations outside the U.S. As of December 31, 2022 and 2021, the Company’s foreign subsidiaries operated at a cumulative deficit for U.S. earnings and profit purposes. In the event the Company is required to repatriate funds from outside of the U.S., such repatriation would be subject to local laws, customs, and tax consequences. Determination of the amount of unrecognized deferred tax liability related to these earnings is not practicable.
Advertising
All advertising costs are expensed as incurred and included in sales and marketing expenses. Advertising expenses incurred by the Company were $3,059 and $2,076 during the years ended December 31, 2022 and 2021, respectively.
Stock-Based Compensation
Stock-based compensation expense represents the cost of the grant date fair value of stock option, restricted stock unit or performance stock unit grants, estimated in accordance with the applicable accounting guidance, recognized on a straight-line basis over the vesting period. The vesting period generally approximates the expected service period, or where applicable the performance period, of the awards. When equity awards include a performance condition that impacts the vesting or exercisability of the award, the Company records compensation cost when it becomes probable that the performance condition will be met and the service is provided. Compensation cost for awards with a performance condition are recognized over the shorter of the derived service period or the explicit/implicit service period. Compensation expense for awards subject to market-based conditions are recognized on a straight-line basis over the derived service period, regardless of whether the market condition is satisfied. Forfeitures are recognized and accounted for as they occur.
The fair value of stock options with service or performance conditions is estimated on the date of grant using the Black-Scholes option pricing model, inclusive of assumptions for risk-free interest rates, expected dividends, expected terms, expected volatility, and the fair value of the underlying stock. The fair value of restricted stock awards with service or performance conditions is estimated on the date of grant based on the market value of the Company’s common stock. The fair value of stock options and restricted stock units with market-based conditions is estimated on the date of grant using a Monte Carlo simulation model, inclusive of assumptions for risk-free interest rates, expected terms, expected volatility, and the market target. Significant changes to the key assumptions underlying the factors used could result in different fair values of stock options at each valuation date, which could result in different stock-based compensation expense.
The risk-free interest rates used are based on the U.S. Department of Treasury (U.S. Treasury) yield in effect at the time of grant for zero-coupon U.S. Treasury notes with maturities approximately equal to the expected term of the stock options. We base the assumed dividend yield on our expectation of not paying dividends in the foreseeable future. Options granted have a maximum contractual term of 10 years. The Company has limited historical stock option activity and therefore estimates the expected term of stock options granted using the simplified method, which represents the average of the contractual term of the stock option and its weighted-average vesting period. The expected volatility of stock options is based upon the historical volatility of a number of publicly traded companies determined to be comparable to the Company. The Company has historically not declared or paid any dividends and does not currently expect to do so in the foreseeable future.
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Common Stock Valuation
Due to the absence of an active market for the Company’s common stock at the time of the Merger, the Company utilized methodologies in accordance with the framework of Standards 9 and 10 of the Uniform Standards of Professional Appraisal Practice, the Statement on Standards for Valuation Services as set forth by the American Institute of Certified Public Accountants (“AICPA”), ASC Topic 820 Fair Value Measurements and Disclosures, and the AICPA Accounting and Valuation Guide for the Valuation of Privately-Held-Company Equity Securities Issued as Compensation, to estimate the fair value of its common stock. The fair value of the common stock was determined based upon a variety of factors, including the illiquid nature of the common stock, sales of the Company’s preferred stock, the effect of the rights and preferences of the preferred stockholders, and the prospects of a liquidity event at the time of valuation. Among other factors are the Company’s unaudited and audited historical financial position and performance and the then-current business climate in the marketplace. Significant changes to the key assumptions underlying the factors used could result in different fair values of common stock at each valuation date.
Transaction Costs and Deferred Transaction Costs
The Company incurred significant costs direct and incremental to the Business Combination and therefore to the recapitalization of the Company. We deferred such costs incurred in 2021 and in early 2022. In 2022, upon closing of the Business Combination, total direct transaction costs were allocated between equity and liability instruments measured at fair value on a recurring basis that were newly issued in the recapitalization. Amounts allocated to equity were recorded to additional paid-in capital, while amounts allocated to the specified liabilities were recorded as other expense.
Recent Accounting Pronouncements
Accounting Pronouncements Issued But Not Yet Adopted
Management does not believe that there are any recently issued, but not yet effective, accounting standards that, if currently adopted, would have a material effect on the Company’s consolidated financial statements or related disclosures.
NOTE 3 — Cash, Cash Equivalents, and Restricted Cash
Cash, cash equivalents, and restricted cash consisted of the following:
|
Year Ended December 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
||
Cash and cash equivalents |
$ |
24,594 |
|
|
$ |
28,565 |
|
Restricted cash |
|
608 |
|
|
|
130 |
|
|
$ |
25,202 |
|
|
$ |
28,695 |
|
|
|
|
|
|
|
||
The December 31, 2022 restricted cash balance includes $360 of cash maintained in escrow related to Forward Share Purchase Agreements (“FPAs”). Effective August 1, 2022, the FPA holders elected to have Leafly repurchase their remaining 3,081 shares covered by the FPAs for an aggregate repurchase price of $31,663. As a result, the shares repurchased have been removed from Leafly's outstanding shares effective as of the date of purchase and placed into treasury. The FPA holders elected to have all but $360 disbursed from the escrow account and are able to claim the remainder any time until August 1, 2023. If unclaimed, the remaining funds in escrow will be distributed to the Company. Additional information regarding the FPAs is included in Notes 13 and 18.
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NOTE 4 — Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets consist of the following:
|
Year Ended December 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
||
Prepaid subscriptions |
$ |
1,051 |
|
|
$ |
965 |
|
Prepaid insurance |
|
533 |
|
|
|
57 |
|
Other prepaid assets |
|
272 |
|
|
|
169 |
|
Other current assets |
|
71 |
|
|
|
156 |
|
|
$ |
1,927 |
|
|
$ |
1,347 |
|
NOTE 5 — Accounts Receivable, Net
Accounts receivable, net consists of amounts due from customers less an allowance for doubtful accounts. The following table presents the allowance for doubtful accounts and the changes therein:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
|
||
Balance, beginning of period |
|
|
$ |
1,848 |
|
|
$ |
1,131 |
|
Add: provision for doubtful accounts |
|
|
|
1,378 |
|
|
|
1,177 |
|
Less: write-offs |
|
|
|
(2,318 |
) |
|
|
(460 |
) |
Balance, end of period |
|
|
$ |
908 |
|
|
$ |
1,848 |
|
|
|
|
|
|
|
|
|
||
NOTE 6 — Property, Equipment, and Software, Net
Property, equipment, and software consisted of the following:
|
As of December 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
||
Furniture and equipment |
$ |
740 |
|
|
$ |
1,049 |
|
Leasehold improvements |
|
— |
|
|
|
2 |
|
Capitalized internal-use software |
|
2,310 |
|
|
|
— |
|
|
|
3,050 |
|
|
|
1,051 |
|
Less: accumulated depreciation and amortization |
|
(765 |
) |
|
|
(738 |
) |
|
$ |
2,285 |
|
|
$ |
313 |
|
|
|
|
|
|
|
||
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NOTE 7 — Accrued Expenses and Other Current Liabilities
Accrued expenses consist of the following:
|
As of December 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
||
Accrued bonuses |
$ |
1,309 |
|
|
$ |
3,668 |
|
Other employee-related liabilities |
|
2,403 |
|
|
|
2,131 |
|
Accrued interest |
|
1,000 |
|
|
|
1,313 |
|
Other accrued expenses 1 |
|
1,523 |
|
|
|
1,213 |
|
|
$ |
6,235 |
|
|
$ |
8,325 |
|
Accrued bonuses include cash incentives for executive officers and other employees of the Company. Historically, bonuses have been provided to executives on a discretionary basis. Bonus compensation is designed to hold executives accountable and reward them for individual and business performance. The Company offers an annual incentive program for its executive officers whereby they are eligible to receive target bonus payouts, of up to 50% for the CEO ($73 for 2022) and 40% for other executive officers, of their base salary, with the actual bonus awarded based on a number of factors, including each executive’s individual performance, Leafly’s performance, current market and business climate, and Leafly’s financial circumstances, as determined by the Leafly board of directors.
NOTE 8 — Commitments and Contingencies
In the normal course of business, the Company may receive inquiries or become involved in legal disputes regarding various litigation matters. In the opinion of management, any potential liabilities resulting from such claims would not have a material adverse effect on the Company’s consolidated financial statements.
Leases
The Company does not have any leases with an original term longer than 12 months as of December 31, 2022. The Company has short-term arrangements with immaterial rental obligations for office space.
Nasdaq Notifications of Noncompliance
On October 28, 2022, the Company received a letter from the staff (the “Staff”) of The Nasdaq Stock Market LLC (“Nasdaq”) providing notification that the Company no longer complies with the $50 million in market value of listed securities standard for continued listing on the Nasdaq Global Market under Nasdaq’s Listing Rule 5450(b)(2)(A) and that the Company also does not comply with either of the two alternative standards of Listing Rule 5450(b), the equity standard and the total assets and total revenue standard. On November 2, 2022, Leafly received another letter from the Staff providing notification that, for the previous 30 consecutive business days, the bid price for Leafly’s common stock had closed below the $1.00 per share minimum bid price requirement for continued listing under Nasdaq Listing Rule 5450(a)(1). The notices have no immediate effect on the listing of the Company’s common stock or warrants.
In accordance with Nasdaq Listing Rule 5810(c)(3)(C), the Company has been provided an initial period of 180 calendar days, or until April 26, 2023, to regain compliance with the market value of listed securities requirement. To regain compliance, the market value of the Company’s common stock must be $50 million or more for a minimum of 10 consecutive business days at any time before April 26, 2023 and we must otherwise satisfy the Nasdaq Global Market’s requirements for continued listing. In accordance with Nasdaq Listing Rule 5810(c)(3)(A), the Company has been provided an initial period of 180 calendar days, or until May 1, 2023, to regain compliance with the minimum bid price requirement. To regain compliance, the closing bid price of the Company’s common stock must be $1.00 per share or more for a minimum of 10 consecutive business days at any time before May 1, 2023 and we must otherwise satisfy the
89
Nasdaq Global Market’s requirements for continued listing The Company's failure to regain compliance during these periods could result in delisting.
If the Company is not able to achieve compliance with an applicable listing standard under Listing Rule 5450(b) prior to April 26, 2023, or if the Company does not regain compliance with the minimum bid price requirement by May 1, 2023, Nasdaq would notify the Company that its securities would be subject to delisting. In the event of such a notification, the Company may appeal the Staff’s determination to delist its securities, but there can be no assurance the Staff would grant the Company’s request for continued listing.
NOTE 9 — Revenue and Contract Balances
The following table presents the Company's revenue by service type:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
|
||
Advertising 1 |
|
|
$ |
46,945 |
|
|
$ |
42,961 |
|
Other services 1 |
|
|
|
418 |
|
|
|
75 |
|
|
|
|
$ |
47,363 |
|
|
$ |
43,036 |
|
|
|
|
|
|
|
|
|
||
The following table presents the Company's revenue by geographic region:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
|
||
United States 1 |
|
|
$ |
44,424 |
|
|
$ |
38,604 |
|
All other countries 1 |
|
|
|
2,939 |
|
|
|
4,432 |
|
|
|
|
$ |
47,363 |
|
|
$ |
43,036 |
|
|
|
|
|
|
|
|
|
||
The following tables presents the Company's revenue by state:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
|
||
Arizona |
|
|
|
18 |
% |
|
|
17 |
% |
California |
|
|
|
12 |
% |
|
|
10 |
% |
Oregon |
|
|
|
10 |
% |
|
|
11 |
% |
No other state comprised 10% or more of Leafly’s revenue during the year ended December 31, 2022 and 2021. We have a diversified set of customers; no single customer accounted for 10% or more of our revenue for the year ended December 31, 2022 or 2021.
90
The following table presents the Company's revenue by timing of recognition:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
Over Time 1 |
|
|
|
|
|
|
|
||
Retail 2 |
|
|
$ |
36,742 |
|
|
$ |
33,628 |
|
Brands 3 |
|
|
|
6,722 |
|
|
|
6,702 |
|
|
|
|
|
43,464 |
|
|
|
40,330 |
|
Point in time 1 |
|
|
|
|
|
|
|
||
Brands 4 |
|
|
|
3,899 |
|
|
|
2,706 |
|
|
|
|
$ |
47,363 |
|
|
$ |
43,036 |
|
|
|
|
|
|
|
|
|
||
Revenues recognized over time are associated with software subscriptions, display ads and audience extension. Revenues recognized at a point in time are associated with branded content and channel advertising. There are no material variations in delivery and revenue recognition periods within the over time category.
Contract liabilities consist of deferred revenue, which is recorded on the Consolidated Balance Sheets when the Company has received consideration, or has the right to receive consideration, in advance of transferring the performance obligations under the contract to the customer.
The following table presents the Company's deferred revenue balances and changes therein:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
|
||
Balance, beginning of year |
|
|
$ |
1,975 |
|
|
$ |
1,585 |
|
Add: net increase in current period contract liabilities |
|
|
|
1,942 |
|
|
|
1,936 |
|
Less: revenue recognized from beginning balance |
|
|
|
(1,959 |
) |
|
|
(1,546 |
) |
Balance, end of year |
|
|
$ |
1,958 |
|
|
$ |
1,975 |
|
|
|
|
|
|
|
|
|
||
A majority of the deferred revenue balance as of December 31, 2022 is expected to be recognized in the subsequent 12-month period. No other contract assets or liabilities are recorded on the Company’s Consolidated Balance Sheets as of December 31, 2022 and 2021.
NOTE 10 — Income Taxes
Domestic and international income (loss) before income taxes consisted of the following:
|
|
Year Ended December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
United States |
|
$ |
6,567 |
|
|
$ |
(12,142 |
) |
Foreign |
|
|
(1,497 |
) |
|
|
118 |
|
Income (loss) before income taxes |
|
$ |
5,070 |
|
|
$ |
(12,024 |
) |
|
|
|
|
|
|
|
||
91
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amount of assets and liabilities for financial reporting purposes and the amounts for income tax purposes. The significant components of deferred tax assets and liabilities consist of the following:
|
|
As of December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
Deferred tax assets: |
|
|
|
|
|
|
||
Net operating loss carryforwards – domestic |
|
$ |
20,565 |
|
|
$ |
12,610 |
|
Net operating loss carryforwards – foreign |
|
|
1,537 |
|
|
|
1,220 |
|
Intangible assets |
|
|
11,671 |
|
|
|
12,426 |
|
Nonqualified stock options |
|
|
387 |
|
|
|
— |
|
Accruals and reserves |
|
|
582 |
|
|
|
1,398 |
|
163(j) interest limitation |
|
|
1,024 |
|
|
|
324 |
|
Other |
|
|
22 |
|
|
|
60 |
|
Total deferred tax assets |
|
|
35,788 |
|
|
|
28,038 |
|
Valuation allowance |
|
|
(35,780 |
) |
|
|
(28,027 |
) |
Total deferred tax assets, net of allowance |
|
$ |
8 |
|
|
$ |
11 |
|
Deferred tax liabilities: |
|
|
|
|
|
|
||
Other |
|
$ |
(8 |
) |
|
$ |
(11 |
) |
Total deferred tax liabilities |
|
|
(8 |
) |
|
|
(11 |
) |
Total deferred tax assets, net |
|
$ |
— |
|
|
$ |
— |
|
|
|
|
|
|
|
|
||
Management regularly assesses the ability to realize deferred tax assets recorded based upon the weight of available evidence, including such factors as recent earnings history and expected future taxable income on a jurisdiction-by-jurisdiction basis. In the event that the Company changes its determination as to the amount of realizable deferred tax assets, the Company will adjust its valuation allowance with a corresponding impact to the provision for income taxes in the period in which such determination is made. The Company’s management believes that, based on a number of factors, it is more likely than not, that all or some portion of the deferred tax assets will not be realized; and accordingly, for the year ended December 31, 2022, the Company has provided a valuation allowance against the Company’s U.S. net deferred tax assets. The net change in the valuation allowance for the year ended December 31, 2022 was an increase of $7,753, including $200 established in accounting for the reverse recapitalization.
The Company had net operating loss carryforwards (“NOL”) for federal, state and foreign income tax purposes of approximately $85,430, $60,478 and $5,801, respectively, as of December 31, 2022. The Company's state NOL will begin to expire in 2039 and all of the Company's federal NOL will last indefinitely.
The Internal Revenue Code of 1986, as amended (the “Code”), imposes restrictions on the utilization of NOLs in the event of an “ownership change” of a corporation. Accordingly, a company’s ability to use net operating losses may be limited as prescribed under Code Section 382 (“IRC Section 382”). Events which may cause limitations in the amount of the NOLs that the Company may use in any one year include, but are not limited to, a cumulative ownership change of more than 50% over a three-year period. Utilization of the federal and state NOLs may be subject to substantial annual limitation due to the ownership change limitations provided by the IRC Section 382 and similar state provisions.
ASC 740 prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more likely than not to be sustained upon examination by taxing authorities. The Company recognizes accrued interest and penalties related to unrecognized tax benefits as income tax expense. There were no unrecognized tax benefits and no amounts accrued for interest and penalties as of December 31, 2022 and 2021. The Company is currently not aware of any issues under review that could result in significant payments, accruals or material deviation from its position. The Company is subject to income tax examinations by major taxing authorities since inception.
92
Under the Tax Cuts and Jobs Act of 2017, research and development costs are no longer fully deductible and are required to be capitalized and amortized for U.S. tax purposes effective January 1, 2022. The mandatory capitalization requirement had no material impact to the Company during the year ended December 31, 2022.
The Company files income tax returns in the U.S. federal jurisdiction and various state and foreign jurisdictions. Management believes all the income tax returns filed since inception remain open to examination by the major domestic and foreign taxing jurisdictions to which the Company is subject due to net operating loss carry forwards.
The provision for income taxes differs from the amount estimated by applying the statutory federal income tax rate to net loss before taxes as follows:
|
|
Year Ended December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
Federal tax expense (benefit) at statutory rate |
|
$ |
1,065 |
|
|
$ |
(2,525 |
) |
State income tax expense (benefit) at statutory rate, net of federal benefit |
|
|
238 |
|
|
|
(359 |
) |
Permanent differences |
|
|
— |
|
|
|
282 |
|
Deferred tax asset true-ups |
|
|
(266 |
) |
|
|
6 |
|
Rate change |
|
|
(329 |
) |
|
|
— |
|
Change in valuation allowance |
|
|
7,753 |
|
|
|
2,626 |
|
Stock-based compensation |
|
|
195 |
|
|
|
— |
|
Change in fair value of warrants |
|
|
(9,011 |
) |
|
|
— |
|
Nondeductible compensation under 162(m) |
|
|
353 |
|
|
|
|
|
Other adjustments, net |
|
|
2 |
|
|
|
(30 |
) |
Provision for income taxes |
|
$ |
— |
|
|
$ |
— |
|
|
|
|
|
|
|
|
||
NOTE 11 — Convertible Promissory Notes
2022 Notes
Merida entered into a $30,000 convertible note purchase agreement (the “Note Purchase Agreement”) in January 2022, which Legacy Leafly subsequently guaranteed and joined as a party to the agreement on February 4, 2022 in connection with the Business Combination (the “2022 Notes”). Accordingly, post-Business Combination, the 2022 Notes are presented as a liability on Leafly's balance sheet, net of debt issuance costs and debt discount. The Company recognized debt issuance costs of $714 paid in cash, and a debt discount of $924 paid in shares transferred by the Sponsor to the holders of the 2022 Notes upon issuance. The 2022 Notes bear interest at 8% annually, paid in cash semi-annually in arrears on July 31 and January 31 of each year, and mature on January 31, 2025.
The 2022 Notes are unsecured convertible senior notes due 2025. They are convertible at the option of the holders at any time before maturity at an initial conversion share price of $12.50 per $1,000 principal amount of 2022 Notes and per $1,000 of accrued but unpaid interest on any converted 2022 Notes. In addition, the Company may, at its election, force the conversion of the 2022 Notes on or after January 31, 2024, if the volume-weighted average trading price of the Company’s common stock exceeds $18.00 for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days. The Company also has the option, on or after January 31, 2023 and prior to the 40th trading day immediately before the maturity date and subject to the holders’ ability to optionally convert, to redeem all or a portion of the 2022 Notes at a cash redemption price equal to 100% of the principal amount of the 2022 Notes, plus accrued and unpaid interest, if any. The holders of the 2022 Notes have the right to cause the Company to repurchase for cash all or a portion of the 2022 Notes
93
held by such holder upon the occurrence of a “fundamental change” (as defined in the Note Purchase Agreement) or in connection with certain asset sales, in each case at a price equal to 100% of par plus accrued and unpaid interest, if any.
As of December 31, 2022, the net carrying amount of the 2022 Notes was $28,863, which includes unamortized issuance costs and debt discount of $1,137, which will be amortized over the remaining 25 months. The estimated fair value of the convertible debt instruments was approximately $27,100 as of December 31, 2022. The fair value of the 2022 Notes was measured using the Bloomberg OVCV model and CNVI model which modifies the underlying OVCV program. These models incorporate inputs for volatility, Leafly’s stock price, time to maturity, the risk-free rate and Leafly’s credit spread, some of which are considered Level 3 inputs in the fair value hierarchy (Note 18).
2021 Notes
Legacy Leafly issued a series of convertible promissory notes in June 2021 totaling approximately $23,970. In August 2021, Legacy Leafly issued additional convertible promissory notes totaling $7,500 to Merida Capital, an affiliate of Merida. (Both note issuances are collectively referred to below as the “2021 Notes”).
The 2021 Notes bore interest at 8% annually and were considered traditional convertible debt with the entire amount recognized as a liability (with no amount allocated to equity), reduced for direct issuance costs, with initial and subsequent recognition at amortized cost in accordance with the interest method. Unless converted, the entire balance of principal and accrued but unpaid interest was due on December 3, 2022. The 2021 Notes were contingently convertible upon the occurrence of certain events, to include a qualified financing, a non-qualified financing, or in a qualified public transaction.
On February 4, 2022, in connection with the Business Combination, the 2021 Notes were converted to approximately 4,128 shares of Leafly common stock at the conversion price of approximately $2.63, which was 80% of the implied price per share of common stock in the Business Combination. Upon closing of the Business Combination, the shares of common stock then converted to shares of common stock of the combined company using the conversion ratio of 0.3283, which was used for conversion of all Leafly securities.
NOTE 12 — Stockholders’ Equity
The Consolidated Statements of Changes in Stockholders' Equity (Deficit) reflect the reverse recapitalization on February 4, 2022, as discussed in Note 1. Since the Company was determined to be the accounting acquirer in the transaction, all periods presented prior to consummation of the transaction reflect the historical activity and balances of Leafly, Inc. (other than common and preferred stock and potentially issuable shares underlying stock options and convertible promissory notes, which have been retroactively restated).
Common Stock
On February 4, 2022, the Business Combination was consummated pursuant to the Merger Agreement. Prior to the Business Combination, Legacy Leafly's capital stock consisted of Series A preferred stock and common stock. Upon the consummation of the Business Combination, all issued and outstanding shares of Series A preferred stock converted to shares of nonredeemable common stock. In connection with the settlement of the FPAs (Note 13), 25 shares held by Merida Holdings, LLC were canceled, according to an agreement between the Company and Merida Holdings, LLC entered into upon execution of the FPAs.
As of December 31, 2022 Leafly's authorized capital stock consisted of:
Voting Rights
The holders of Leafly common stock exclusively possess all stockholder voting power with respect to Leafly, except as otherwise required by law or the Company's charter. Holders of Leafly common stock are entitled to one vote per share on
94
each matter properly submitted to a vote of stockholders. The holders of Leafly common stock will at all times vote together as one class on all matters submitted to a vote of stockholders, unless otherwise required by Delaware law or the charter. If Leafly has multiple classes of common stock in the future, then Delaware law could require holders of shares of a class of capital stock to vote separately as a single class in the following circumstances:
Election of Directors
The charter provides for a classified board of directors that is divided into three classes with staggered three-year terms. Only the directors in one class are subject to election by a plurality of the votes cast at each annual meeting of stockholders, with the directors in the other classes continuing for the remainder of their respective three-year terms. The charter does not provide for cumulative voting for the election of directors.
Dividend Rights
Subject to the rights, if any, of the holders of any outstanding series of the Leafly preferred stock, the holders of Leafly common stock are entitled to receive dividends and other distributions (payable in cash, property or capital stock of Leafly) when, as and if declared by the Leafly board of directors out of any assets or funds legally available and will share equally on a per share basis in such dividends and distributions.
No Preemptive or Similar Rights
Leafly common stock is not entitled to preemptive rights, and is not subject to conversion, redemption or sinking fund provisions.
Liquidation, Dissolution and Winding Up
In the event of any voluntary or involuntary liquidation, dissolution or winding-up, after payment or provision for payment of the debts and other liabilities of Leafly, the holders of Leafly common stock will be entitled to receive all the remaining assets of Leafly available for distribution to its stockholders, ratably in proportion to the number of shares of the Leafly common stock held by them, subject to the rights, if any, of the holders of any outstanding shares of Leafly preferred stock.
Sponsor Shares Subject to Earn-Out Conditions
In accordance with the Merger Agreement, upon closing of the Business Combination, 1,625 of the shares held by the Sponsor were placed in escrow and subjected to earn-out conditions (“Escrow Shares”). Of these Escrow Shares, 50% will be released from escrow if and when the Company's common stock trades at or above $13.50 for 20 out of 30 consecutive trading days at any time during the two-year period following closing, and the remaining 50% will be released from escrow if and when the Company's common stock trades at or above $15.50 for 20 out of 30 consecutive trading days at any time during the three-year period following closing. In addition, all 1,625 Escrow Shares will be released upon a change in control.
We account for the Escrow Shares as derivative liabilities, remeasured to fair value on a recurring basis, with changes in fair value recorded to earnings. See Note 18 for additional information.
Lock Up Restrictions
In accordance with various legal documents, the majority of our common stock was subject to restrictions on trading through August 3, 2022. See Note 1 for detail on common stock previously subject to Lock Up Restrictions.
95
Treasury Stock
Effective August 1, 2022, the Company repurchased 3,081 shares of its common stock at a weighted-average price of $10.28 per share for a total of $31,663, with $31,303 paid with restricted cash and $360 remaining in accrued expenses and other current liabilities on our consolidated balance sheet at December 31, 2022. These repurchases were in settlement of the FPAs. See Notes 3 and 13 for additional information.
Stockholder Earn-Out Rights
Leafly stockholders, as of immediately prior to the closing of the Business Combination, were granted upon closing of the Business Combination, contingent rights to receive up to 5,429 shares of common stock (the “Rights”) if the Company achieves certain earn-out conditions prior to the third anniversary of the Business Combination. We will account for the Rights as derivative liabilities, which we will remeasure to their current fair value as of the end of each reporting period, with changes in the fair value recorded to earnings. See Note 18 for additional information.
The Rights will be earned and shares of common stock will be issued as follows:
First Tranche
Up to 2,715 shares will be issued if and when:
Second Tranche
Up to 2,715 shares will be issued if and when:
96
If the second revenue target or second target price is met in full, the respective first revenue target or first target price, as applicable, will be deemed to have been met as well if it had not been met during the first period.
Preferred Stock
The Leafly board of directors is authorized, subject to limitations prescribed by the law of the State of Delaware, to issue Leafly preferred stock from time to time in one or more series. The Leafly board of directors is authorized to establish the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, and any qualifications, limitations and restrictions thereof, applicable to the shares of each series. The Leafly board of directors is able, without stockholder approval, to issue Leafly preferred stock with voting and other rights that could adversely affect the voting power and other rights of the holders of the Leafly common stock and could have anti-takeover effects. The ability of the Leafly board of directors to issue Leafly preferred stock without stockholder approval could have the effect of delaying, deferring or preventing a change of control of Leafly or the removal of existing management. Leafly did not have any issued and outstanding shares of preferred stock as of December 31, 2022.
NOTE 13 — Warrants and Forward Share Purchase Agreements
Public Warrants
As of both December 31, 2022 and 2021, there were 6,501 warrants outstanding that had been included in the units issued in Merida’s initial public offering (the “Public Warrants”). Each Public Warrant entitles the holder to purchase one share of common stock at an exercise price of $11.50. Public Warrants may only be exercised for a whole number of shares. No fractional shares will be issued upon exercise of the Public Warrants. The Public Warrants became exercisable 30 days after the completion of the Business Combination. No warrants will be exercisable for cash unless the Company has an effective and current registration statement covering the shares of common stock issuable upon exercise of the warrants and a current prospectus relating to such shares of common stock.
Notwithstanding the foregoing, if a registration statement covering the shares of common stock issuable upon exercise of the Public Warrants is not effective within a specified period following the consummation of a merger, warrant holders may, until such time as there is an effective registration statement and during any period when the Company shall have failed to maintain an effective registration statement, exercise warrants on a cashless basis pursuant to the exemption provided by Section 3(a)(9) of the Securities Act, provided that such exemption is available. If that exemption, or another exemption, is not available, holders will not be able to exercise their warrants on a cashless basis. The Public Warrants will expire five years after the completion of a merger or earlier upon redemption or liquidation.
Once the warrants become exercisable, the Company may redeem the Public Warrants:
If the Company calls the Public Warrants for redemption, management will have the option to require all holders that wish to exercise the Public Warrants to do so on a “cashless basis,” as described in the warrant agreement.
97
Private Warrants
As of both December 31, 2022 and 2021, there were 3,950 warrants outstanding that Merida had sold to the Sponsor and EarlyBirdCapital in a private placement that took place simultaneously with Merida’s initial public offering (“the Private Warrants”). The Private Warrants are identical to the Public Warrants, except that the Private Warrants and the shares of common stock issuable upon the exercise of the Private Warrants were not transferable, assignable or salable until after the completion of the Business Combination, subject to certain limited exceptions. Additionally, the Private Warrants will be exercisable for cash or on a cashless basis, at the holder’s option, and be non-redeemable so long as they are held by the initial purchasers or their permitted transferees. If the Private Warrants are held by someone other than the initial purchasers or their permitted transferees, the Private Warrants will be redeemable by the Company and exercisable by such holders on the same basis as the Public Warrants. The exercise price and number of shares of common stock issuable upon exercise of the Private Warrants may be adjusted in certain circumstances including in the event of a stock dividend, or recapitalization, reorganization, merger or consolidation. However, the Private Warrants will not be adjusted for issuance of common stock at a price below its exercise price. Additionally, in no event will the Company be required to net cash settle the Private Warrants.
We account for the Private Warrants as derivative liabilities, remeasured to fair value on a recurring basis, with changes in the fair value recorded to earnings. See Note 18 for additional information.
Forward Share Purchase Agreements
In December 2021 and January 2022, the Company entered into four separate FPAs with certain investors. The FPAs allowed the investors to sell and transfer common stock held by the investors, not to exceed a total of 4,000 shares in aggregate, to the Company in exchange for cash. The price to be paid by the Company was initially $10.16 per share for up to 2,600 shares and $10.01 per share for up to 1,400 shares. As required by the FPAs, $39,032 of cash was placed into escrow upon closing of the Business Combination, to be used for the share purchases. If the FPAs were not exercised by the holders within their terms of three months post-Business Combination closing, the associated funds were to be released from escrow to the Company. We account for the FPAs as derivative liabilities, remeasured to fair value on a recurring basis, with changes in the fair value recorded to earnings.
On May 3, 2022, Leafly and the holders entered into amendments to the FPAs (the “Amended FPAs”). The Amended FPAs modified the price at which the applicable holder has the right, but not the obligation, to have Leafly repurchase certain shares held by the applicable holder as of the closing of the Business Combination and not later sold into the market to a price of $10.16 per share (with respect to 686 of the shares subject to the Amended FPAs) and $10.31 per share (with respect to 2,404 of the shares subject to the Amended FPAs). The Amended FPAs also modified the date by which such holders may elect to have Leafly repurchase their shares to August 1, 2022. In connection with the Amended FPAs, certain amendments were also made to the escrow agreements in respect of the escrow accounts.
During the year ended December 31, 2022, $8,089 was released from the escrow accounts due to the FPA holders selling shares in the open market, which was accordingly reclassified on the Company's balance sheet from restricted cash to cash.
Effective August 1, 2022, the FPA holders elected to have Leafly repurchase their remaining 3,081 shares covered by the FPAs for an aggregate repurchase price of $31,663. As a result, the shares repurchased have been removed from Leafly's outstanding shares effective as of the date of purchase and placed into treasury. The FPA holders elected to have all but $360 disbursed from the escrow account and are able to claim the remainder any time until August 1, 2023. If unclaimed, the remaining funds in escrow will be distributed to the Company. Also, in connection with the settlement, 25 shares held by Merida Holdings, LLC were canceled, according to an agreement between the Company and Merida Holdings, LLC entered into upon execution of the FPAs.
98
NOTE 14 — Equity Incentive and Other Plans
The Company currently has four equity plans: the New Leafly 2021 Equity Incentive Plan (the “2021 Plan”), the Legacy Leafly 2018 Equity Incentive Plan (the “2018 Plan”), the New Leafy Earn-Out Plan (the “Earn-Out Plan”), and the New Leafly 2021 Employee Stock Purchase Plan (the “ESPP”). Awards under the 2021 Plan are detailed below. There were no options or other equity awards granted under the 2018 Plan, the Earn-Out Plan or the ESPP during the year ended December 31, 2022.
Stock-Based Compensation
2021 Plan
The 2021 Plan became effective immediately upon closing of the Business Combination. Pursuant to the 2021 Plan, 4,502 shares of common stock were initially reserved for issuance. During the term of the 2021 Plan, the number of shares of common stock thereunder automatically increases on each January 1, commencing on January 1, 2023, and ending on (and including) January 1, 2031, by the lesser of (i) 10% of the fully diluted shares of common stock as of the last day of the preceding fiscal year and (ii) 4,502 shares (adjusted pursuant to the terms of the 2021 Plan).
In August 2022 and October 2022, the Company’s compensation committee of the board of directors and an authorized executive of the Company, as applicable, granted stock options to purchase an aggregate of approximately 102 shares of common stock at a weighted-average exercise price of $1.98 per share and granted an aggregate of 2,560 restricted stock units. Of the restricted stock units granted, 683 were market-based awards made to executives with a grant date fair value of $0.04 per share with vesting based on achievement of a $1.0 billion market cap by February 4, 2026, and 137 were performance awards made to executives with a grant date fair value of $0.81 per share with vesting based in part on achievement of a fiscal year 2022 Adjusted EBITDA target, which was achieved (Note 19). Prior to such grants, no grants had been made under the 2021 Plan. See Note 19 for awards subsequent to December 31, 2022.
Stock Options
The fair value of each stock option award is estimated on the date of grant using the Black-Scholes option pricing model. The following weighted-average assumptions were used as inputs to the pricing model for options granted during the year ended December 31, 2022:
Risk-free interest rate |
|
|
4.1 |
% |
Expected term in years |
|
|
4.07 |
|
Expected volatility |
|
|
74.6 |
% |
Expected dividend yield |
|
|
0.0 |
% |
Stock option activity under the 2021 Plan for the year ended December 31, 2022 (there were no stock options granted previously under this plan) was as follows:
|
|
Number of |
|
|
Weighted Average |
|
|
Aggregate |
|
|
Weighted Average |
|
||||
Outstanding at January 1, 2022 |
|
|
— |
|
|
$ |
— |
|
|
$ |
— |
|
|
|
— |
|
Granted |
|
|
102 |
|
|
|
1.98 |
|
|
|
|
|
|
|
||
Exercised |
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
||
Forfeited or expired |
|
|
(1 |
) |
|
|
1.98 |
|
|
|
|
|
|
|
||
Outstanding at December 31, 2022 |
|
|
101 |
|
|
$ |
1.98 |
|
|
$ |
— |
|
|
|
9.61 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Vested and exercisable |
|
|
1 |
|
|
$ |
1.83 |
|
|
$ |
— |
|
|
|
6.15 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
99
As of December 31, 2022, there was $94 of total unrecognized compensation cost related to stock options granted under the 2021 Plan. That cost is expected to be recognized over a weighted-average period of 3.47 years. The weighted-average grant date fair value of options granted under the 2021 Plan for the year ended December 31, 2022 was $1.16 per share.
Restricted Stock Units
Restricted stock unit activity under the 2021 Plan for the year ended December 31, 2022 (there were no restricted stock units granted previously under this plan) was as follows:
|
|
Number of |
|
|
Weighted Average |
|
|
Total Fair Value |
|
|||
Unvested at January 1, 2022 |
|
|
— |
|
|
$ |
— |
|
|
|
|
|
Granted |
|
|
2,560 |
|
|
|
1.17 |
|
|
$ |
2,988 |
|
Vested |
|
|
(317 |
) |
|
|
1.74 |
|
|
$ |
554 |
|
Forfeited |
|
|
(185 |
) |
|
|
1.59 |
|
|
|
|
|
Unvested at December 31, 2022 |
|
|
2,058 |
|
|
$ |
1.30 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
As of December 31, 2022, there was $2,001 of total unrecognized compensation cost related to unvested restricted stock units granted under the 2021 Plan of which $59 relates to performance awards and $12 relates to market-based awards. The total cost is expected to be recognized over a weighted-average period of 3.11 years.
2018 Plan
The 2018 Plan became effective on April 17, 2018. The 2018 Plan terminated upon closing of the Business Combination in 2022, but then-outstanding options under the 2018 Plan remain outstanding pursuant to their terms, with adjustments to the number of shares and exercise prices to reflect the terms of the Business Combination.
The fair value of each stock option award to employees is estimated on the date of grant using the Black-Scholes option pricing model. The following weighted-average assumptions were used as inputs to the pricing model for options granted during the year ended December 31, 2021 (there were no grants made in 2022):
Risk-free interest rate |
|
|
1.15 |
% |
Expected term in years |
|
|
5.90 |
|
Expected volatility |
|
|
61.0 |
% |
Expected dividend yield |
|
|
0.0 |
% |
100
Stock option activity under the 2018 Plan for the periods presented was as follows:
|
|
Number of |
|
|
Weighted Average |
|
|
Aggregate |
|
|
Weighted Average |
|
||||
Outstanding at January 1, 2021 |
|
|
1,893 |
|
|
$ |
1.01 |
|
|
|
|
|
|
|
||
Granted |
|
|
2,567 |
|
|
|
2.13 |
|
|
|
|
|
|
|
||
Exercised |
|
|
(334 |
) |
|
|
1.07 |
|
|
|
|
|
|
|
||
Forfeited or expired |
|
|
(275 |
) |
|
|
1.13 |
|
|
|
|
|
|
|
||
Outstanding at December 31, 2021 |
|
|
3,851 |
|
|
$ |
1.77 |
|
|
$ |
24,018 |
|
|
8.85 |
|
|
Exercised |
|
|
(148 |
) |
|
|
1.09 |
|
|
|
|
|
|
|
||
Forfeited or expired |
|
|
(272 |
) |
|
|
3.95 |
|
|
|
|
|
|
|
||
Outstanding at December 31, 2022 1 |
|
|
3,431 |
|
|
$ |
1.60 |
|
|
$ |
75 |
|
|
6.83 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Vested and exercisable |
|
|
1,725 |
|
|
$ |
1.24 |
|
|
$ |
75 |
|
|
|
6.32 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
As of December 31, 2022, there was: (i) $930 of unrecognized compensation cost related to service-based 2018 Plan option awards, which is expected to be recognized over a weighted-average service period of approximately 2.00 years; and (ii) $1,406 of unrecognized compensation cost related to market-based 2018 Plan option awards, which is expected to be recognized over a weighted-average service period of approximately 0.85 years.
The following table presents the classification of stock-based compensation expense under the 2018 Plan and the 2021 Plan:
|
|
Year Ended December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
Sales and marketing |
|
$ |
223 |
|
|
$ |
102 |
|
Product development |
|
|
234 |
|
|
|
153 |
|
General and administrative |
|
|
3,460 |
|
|
|
767 |
|
|
|
$ |
3,917 |
|
|
$ |
1,022 |
|
|
|
|
|
|
|
|
||
101
Option Modification
Concurrent with the closing of the Business Combination, the vesting provisions of certain stock options previously granted in 2021 under the 2018 Plan to our Chief Executive Officer to purchase 2,917 shares of common stock were modified, and a corresponding charge of $1,366 was recorded for the three months ended March 31, 2022 to general and administrative expenses and additional paid-in capital. The original award included the following vesting provisions:
The modified vesting provisions are as follows:
102
Earn-Out Plan
The Earn-Out Plan became effective immediately upon closing of the Business Combination. Pursuant to the Earn-Out Plan, approximately 571 shares of common stock have been reserved for issuance to employees and certain other eligible parties in the form of restricted stock units (“RSUs”). These RSUs will vest if the Company achieves certain thresholds prior to the third anniversary of the Merger. No RSUs have been awarded under the Earn-Out Plan as of December 31, 2022.
Employee Stock Purchase Plan
The ESPP became effective immediately upon closing of the Merger. Pursuant to the ESPP, 1,126 shares of common stock are initially reserved for issuance. During the term of the ESPP, the number of shares of common stock thereunder automatically increases on each January 1, commencing on January 1, 2023 and ending on (and including) January 1, 2031, by the lesser of (i) 2.5% of the fully diluted shares of common stock as of the last day of the preceding fiscal year and (ii) 1,126 shares (as adjusted pursuant to the terms of the ESPP). The Company's current offering period runs from September 16, 2022 through March 15, 2023. Certain employees have enrolled in the ESPP, but no purchases had been made as of December 31, 2022.
Defined Contribution Plan
The Company recognized expense from matching contributions to the Company-sponsored defined contribution retirement (401k) plan as follows for the periods presented:
|
|
Year Ended December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
401(k) matching contributions |
|
$ |
875 |
|
|
$ |
712 |
|
|
|
|
|
|
|
|
||
NOTE 15 — Related Party Transactions
One of Leafly's significant investors is a member of the board of directors of Tilray, Inc., which is the parent company of High Park Holdings Ltd., a customer of Leafly, and has therefore been identified as a related party. During the years ended December 31, 2022 and 2021, the Company recorded approximately $— and $142, respectively, of revenue earned from contracts with this customer.
In June 2021 the investor noted above purchased a convertible promissory note totaling $1,000. The note was issued as part of the existing series of 2021 Notes (see Note 11) and was subject to the same interest rate, maturity, and conversion terms. This note converted to shares of Leafly common stock upon closing of the Business Combination in February 2022, along with the other 2021 Notes.
At December 31, 2022, the Company owed $10 to two members of its board of directors, which is included in accrued expenses and other current liabilities on Leafly's consolidated balance sheet.
NOTE 16 — Net Income (Loss) Per Share
Basic and diluted net income (loss) per share attributable to common stockholders is presented in conformity with the two-class method required for participating securities. Under the two-class method, basic net income (loss) per share attributable to common stockholders is computed by dividing the net income (loss) attributable to common stockholders by the weighted-average number of shares of common stock outstanding during the period. Shares repurchased and held in treasury by the Company are removed from the weighted-average number of shares of common stock outstanding as of the date of repurchase.
The Company considers its preferred stock to be participating securities. As of December 31, 2022, the Company had 1,625 outstanding shares of common stock that are in escrow and subject to earn-out conditions and thus forfeiture, which do not
103
meet the criteria for participating securities (see Note 12 for additional information). There were no such shares as of December 31, 2021. Net income (loss) is attributed to common stockholders and participating securities based on their participation rights. Net income (loss) is not attributed to the preferred stock as the holders of the preferred stock do not have a contractual obligation to share in any losses.
Diluted earnings per share attributable to common stockholders adjusts basic earnings per share for the potentially dilutive impact of non-participating shares of common stock that are subject to forfeiture, stock options, preferred stock, convertible notes, and other securities outstanding. Certain securities are antidilutive and as such, are excluded from the calculation of diluted earnings per share and disclosed separately. Because of the nature of the calculation, particular securities may be dilutive in some periods and anti-dilutive in other periods. The Class 1, 2, and 3 common shares presented below have been retroactively restated for all periods using the conversion ratio in connection with the Business Combination.
The following table presents the computation of basic and diluted net income (loss) per share attributable to common stockholders, as a group, for the periods presented:
|
|
Year Ended December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
Net income (loss) |
|
$ |
5,070 |
|
|
$ |
(12,024 |
) |
Income impact of forward purchase agreements |
|
|
(346 |
) |
|
|
— |
|
Total undistributed income (loss) |
|
$ |
4,724 |
|
|
$ |
(12,024 |
) |
|
|
|
|
|
|
|
||
Weighted average shares outstanding |
|
|
35,080 |
|
|
|
24,882 |
|
Dilutive effect of forward purchase agreements |
|
|
1,140 |
|
|
|
— |
|
Dilutive effect of stock-based awards |
|
|
1,520 |
|
|
|
— |
|
Common stock and common stock equivalents |
|
|
37,740 |
|
|
|
24,882 |
|
|
|
|
|
|
|
|
||
Basic net income (loss) per share |
|
$ |
0.14 |
|
|
$ |
(0.48 |
) |
Diluted net income (loss) per share |
|
$ |
0.13 |
|
|
$ |
(0.48 |
) |
|
|
|
|
|
|
|
||
During 2022, the Class 1, 2, and 3 shares were outstanding from January 1, 2022 through February 3, 2022, while only one class of common stock was outstanding beginning February 4, 2022. During 2021, only the Class 1, 2, and 3 shares were outstanding. Following are the calculations of basic and diluted net income (loss) per share for each class of common stock (refer to the tables above for the impact of common stock equivalents on common shares for the periods presented):
|
Year Ended December 31, |
|
|||||||||||||
|
2022 |
|
|
2021 |
|
||||||||||
|
Common |
|
|
Class 1 |
|
|
Class 2 |
|
|
Class 3 |
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
||||
Net income (loss) |
$ |
5,070 |
|
|
$ |
(4,532 |
) |
|
$ |
(6,646 |
) |
|
$ |
(846 |
) |
Weighted average shares outstanding |
|
35,080 |
|
|
|
9,375 |
|
|
|
13,755 |
|
|
|
1,752 |
|
Common stock and common stock equivalents |
|
37,740 |
|
|
|
9,375 |
|
|
|
13,755 |
|
|
|
1,752 |
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Basic net income (loss) per share |
$ |
0.14 |
|
|
$ |
(0.48 |
) |
|
$ |
(0.48 |
) |
|
$ |
(0.48 |
) |
Diluted net income (loss) per share |
$ |
0.13 |
|
|
$ |
(0.48 |
) |
|
$ |
(0.48 |
) |
|
$ |
(0.48 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
||||
104
The following shares of common stock subject to certain instruments were excluded from the computation of diluted net income per share attributable to common stockholders for the periods presented as their effect would have been antidilutive (with figures recast using the conversion ratio for the Business Combination, as applicable):
|
|
Year Ended December 31, |
|
|||||
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
Shares subject to warrants |
|
|
10,451 |
|
|
|
— |
|
Shares subject to convertible promissory notes |
|
|
2,421 |
|
|
|
12,481 |
|
Preferred stock |
|
|
— |
|
|
|
6,140 |
|
Escrow Shares |
|
|
1,625 |
|
|
|
— |
|
Shares subject to outstanding common stock options and RSUs |
|
|
3,705 |
|
|
|
3,851 |
|
Shares subject to stockholder earn-out rights |
|
|
5,429 |
|
|
|
— |
|
|
|
|
23,631 |
|
|
|
22,472 |
|
|
|
|
|
|
|
|
||
See Note 11 for additional information regarding convertible promissory notes, Note 12 for additional information regarding stockholder earn-out rights, preferred stock, and Escrow Shares, Note 13 for additional information regarding warrants, and Note 14 for additional information regarding stock options and RSUs.
NOTE 17 — Segment Reporting
Segment revenue and gross profit were as follows during the periods presented:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2022 |
|
|
2021 |
|
||
Revenue: |
|
|
|
|
|
|
|
||
Retail |
|
|
$ |
36,742 |
|
|
$ |
33,628 |
|
Brands |
|
|
|
10,621 |
|
|
|
9,408 |
|
Total revenue |
|
|
$ |
47,363 |
|
|
$ |
43,036 |
|
|
|
|
|
|
|
|
|
||
Gross profit: |
|
|
|
|
|
|
|
||
Retail |
|
|
$ |
32,601 |
|
|
$ |
30,435 |
|
Brands |
|
|
|
8,902 |
|
|
|
7,618 |
|
Total gross profit |
|
|
$ |
41,503 |
|
|
$ |
38,053 |
|
|
|
|
|
|
|
|
|
||
Assets are not allocated to segments for internal reporting presentations, nor are depreciation and amortization.
Geographic Areas
The Company’s operations are primarily in the U.S. and to a lesser extent, in Canada. Refer to Note 9 for revenue classified by major geographic area.
NOTE 18 — Fair Value Measurements
The Company follows the guidance in ASC 820, “Fair Value Measurement,” for its financial assets and liabilities that are re-measured and reported at fair value at each reporting period. The fair value of the Company’s financial assets and liabilities reflects management’s estimate of amounts that the Company would have received in connection with the sale of the assets or paid in connection with the transfer of the liabilities in an orderly transaction between market participants at the measurement date. In connection with measuring the fair value of its assets and liabilities, the Company seeks to maximize
105
the use of observable inputs (market data obtained from independent sources) and to minimize the use of unobservable inputs (internal assumptions about how market participants would price assets and liabilities).
The following fair value hierarchy is used to classify assets and liabilities based on the observable inputs and unobservable inputs used in order to value the assets and liabilities:
Level 1: Quoted prices in active markets for identical assets or liabilities. An active market for an asset or liability is a market in which transactions for the asset or liability occur with sufficient frequency and volume to provide pricing information on an ongoing basis.
Level 2: Observable inputs other than Level 1 inputs. Examples of Level 2 inputs include quoted prices in active markets for similar assets or liabilities and quoted prices for identical assets or liabilities in markets that are not active.
Level 3: Unobservable inputs based on our assessment of the assumptions that market participants would use in pricing the asset or liability.
The Company’s financial instruments include cash equivalents, restricted cash, accounts receivable from customers, accounts payable and accrued liabilities, all of which are typically short-term in nature. The Company believes that the carrying amounts of these financial instruments reasonably approximate their fair values due to their short-term nature.
The following table presents information about the Company’s derivative liabilities that are measured at fair value on a recurring basis beginning February 4, 2022 (the date of closing of the Business Combination) when the derivative liabilities were assumed, and discloses the fair value hierarchy level of the valuation inputs the Company utilized to determine such fair value:
|
|
|
|
|
Fair Value at |
|
|
Change in Fair |
|
|||||||
Description |
|
Level |
|
|
December 31, 2022 |
|
|
February 4, 2022 |
|
|
Year Ended December 31, 2022 |
|
||||
Private Warrants derivative liability |
|
|
3 |
|
|
$ |
182 |
|
|
$ |
3,916 |
|
|
$ |
3,734 |
|
Forward share purchase agreements derivative liability 1 |
|
|
3 |
|
|
|
— |
|
|
|
14,170 |
|
|
|
346 |
|
|
|
3 |
|
|
|
52 |
|
|
|
6,868 |
|
|
|
6,816 |
|
|
Stockholder earn-out rights derivative liability |
|
|
3 |
|
|
|
204 |
|
|
|
26,131 |
|
|
|
25,927 |
|
Total |
|
|
|
|
$ |
438 |
|
|
$ |
51,085 |
|
|
$ |
36,823 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Assumptions used to determine the fair values are presented in the following sections:
Private Warrants Derivative Liability
The Private Warrants were valued using a Black-Scholes model and the following Level 3 inputs:
|
|
December 31, 2022 |
|
|
February 4, 2022 |
|
||
Exercise price |
|
$ |
11.50 |
|
|
$ |
11.50 |
|
Stock price |
|
$ |
0.65 |
|
|
$ |
6.53 |
|
Volatility |
|
|
75.0 |
% |
|
|
34.3 |
% |
Term (in years) |
|
|
4.09 |
|
|
|
5.00 |
|
Risk-free rate |
|
|
4.1 |
% |
|
|
1.8 |
% |
Dividend yield |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
|
|
|
|
|
||
106
The volatility input was calculated using a weighted average of historical volatilities from select benchmark companies and the volatility of the Public Warrants. The term input represents the maximum contractual term, though the Private Warrants may be exercised earlier. The interest rate input is the U.S. Treasury constant maturity rate for the instrument that most closely matches the term input.
Forward Share Purchase Agreements Derivative Liability
The FPAs were valued using a Black-Scholes model and the following Level 3 inputs:
|
|
|
|
February 4, 2022 |
|
|
Exercise price - one agreement |
|
|
|
$ |
10.16 |
|
Exercise price - three agreements |
|
|
|
$ |
10.01 |
|
Stock price |
|
|
|
$ |
6.53 |
|
Volatility |
|
|
|
|
63.9 |
% |
Term (in years) |
|
|
|
|
0.24 |
|
Risk-free rate |
|
|
|
|
0.2 |
% |
Dividend yield |
|
|
|
|
0.0 |
% |
|
|
|
|
|
|
|
The volatility input was calculated using a weighted average of historical volatilities from select benchmark companies. The term input represents the maximum contractual term, though the shares underlying the FPAs were in some cases sold by the holders into the open market earlier (see Note 13). The interest rate input is the U.S. Treasury constant maturity rate for the instrument that most closely matches the term input.
Escrow Shares Derivative Liability
The Escrow Shares derivative liability was calculated using a Monte Carlo simulation and the following Level 3 inputs:
|
|
December 31, 2022 |
|
|
February 4, 2022 |
|
||
First stock price trigger |
|
$ |
13.50 |
|
|
$ |
13.50 |
|
Second stock price trigger |
|
$ |
15.50 |
|
|
$ |
15.50 |
|
Stock price |
|
$ |
0.65 |
|
|
$ |
6.53 |
|
Volatility |
|
|
86.0 |
% |
|
|
64.0 |
% |
Term (in years) |
|
|
2.09 |
|
|
|
3.00 |
|
Risk-free rate |
|
|
4.4 |
% |
|
|
1.6 |
% |
Dividend yield |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
|
|
|
|
|
||
The volatility input was calculated using a weighted average of historical volatilities from select benchmark companies. The term input represents the maximum contractual term, though the shares may be released from escrow earlier. The interest rate input is the U.S. Treasury constant maturity rate for the instrument that most closely matches the term input.
Stockholder Earn-Out Rights Derivative Liability
The stockholder earn-out rights were valued using a Monte Carlo simulation and the following Level 3 inputs:
107
|
|
December 31, 2022 |
|
|
February 4, 2022 |
|
||
First stock price trigger |
|
$ |
13.50 |
|
|
$ |
13.50 |
|
Second stock price trigger |
|
$ |
15.50 |
|
|
$ |
15.50 |
|
First revenue trigger |
|
$ |
65,000 |
|
|
$ |
65,000 |
|
Second revenue trigger |
|
$ |
101,000 |
|
|
$ |
101,000 |
|
Stock price |
|
$ |
0.65 |
|
|
$ |
6.53 |
|
Revenue assumption |
|
$ |
48,000 |
|
|
$ |
55,500 |
|
Volatility |
|
|
86.0 |
% |
|
|
64.0 |
% |
Term (in years) |
|
|
2.09 |
|
|
|
3.00 |
|
Risk-free rate |
|
|
4.4 |
% |
|
|
1.6 |
% |
Dividend yield |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
|
|
|
|
|
||
The revenue assumption input relates to projected revenue for fiscal year 2022 as of February 4, 2022 and for fiscal year 2023 as of December 31, 2022, and represents the midpoint of revenue guidance the Company had provided in the respective period. The volatility input was calculated using a weighted average of historical volatilities from select benchmark companies. The term input represents the maximum contractual term, though the stockholder earn-out rights may vest earlier. The interest rate input is the U.S. Treasury constant maturity rate for the instrument that most closely matches the term input.
NOTE 19 - Subsequent Events
Issuance and Cancellation of Equity Awards
On March 14, 2023, Leafly awarded 631 RSUs, which will vest monthly in 25% increments over 4 months, to employees in connection with its 2022 annual incentive plan (Note 7).
In 2023, through the date of this report, approximately 925 options, nonvested RSUs and nonvested PSUs were canceled or forfeited in connection with employee termination activity.
On March 13, 2023, Leafly’s compensation committee approved the vesting of PSUs awarded in 2022 related to the achievement of the Company’s 2022 Adjusted EBITDA target (Note 14).
ESPP Purchase
On March 15, 2023, Leafly purchased 289 shares on behalf of its ESPP (Note 14) for a total of $120.
Reduction in Force
On March 16, 2023 the Company announced a plan to reduce its workforce by approximately 40 persons in an effort to reduce its operating expenses at an estimated cash cost of approximately $700 expected to be recognized during the first quarter of 2023. This headcount reduction is in addition to the headcount reduction of 56 persons previously announced in October 2022.
108
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
Item 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
The term “disclosure controls and procedures,” as defined in Rules 13a-15 and 15d-15 under the Exchange Act refers to controls and procedures that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
Because there are inherent limitations in all control systems, a control system, no matter how well conceived and operated, can provide only reasonable, as opposed to absolute, assurance that the objectives of the control system are met. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs.
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this Annual Report on Form 10-K. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective, at the reasonable assurance level, as of the end of the period covered by this Annual Report.
Management’s Report on Internal Controls Over Financial Reporting
As required by SEC rules and regulations implementing Section 404 of the Sarbanes-Oxley Act, our management, with the participation of our principal executive officer and our principal financial officer, is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of our consolidated financial statements for external reporting purposes in accordance with GAAP. Our internal control over financial reporting includes those policies and procedures that:
Because of its inherent limitations, internal control over financial reporting may not prevent or detect errors or misstatements in our consolidated financial statements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Also, projections of any evaluation of
109
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree or compliance with the policies or procedures may deteriorate.
Under the supervision of and with the participation of our principal executive officer and principal financial officer, our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2022, based on the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework (2013 framework). Based on this assessment, management concluded that our internal control over financial reporting was effective as of December 31, 2022.
This Annual Report on Form 10-K does not include an attestation report of our independent registered public accounting firm due to our status as a non-accelerated filer.
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting (as defined in Rules 13a-15(d) and 15d-15(f) under the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting during the three months ended December 31, 2022.
Item 9B. OTHER INFORMATION
Not applicable.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.
Not applicable.
110
PART III
Item 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Information about our Directors and Executive Officers
Below is a list of the members of our board of directors (the “Board”) and our executive officers as of the date of this filing, their respective ages, positions and offices held with the Company, and the composition of the Board's three standing committees, including the Audit Committee established in accordance with Section 3(a)(58)(B) of the Exchange Act and rules of Nasdaq.
Name |
|
Class (1) |
|
Current Term Expires (2) |
|
|
Age |
|
|
Positions Held |
|
Audit Committee |
|
Compensation Committee |
|
Nominating and Corporate Governance Committee |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Directors and Executive Officers: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Yoko Miyashita |
|
I |
|
|
2025 |
|
|
|
48 |
|
|
Chief Executive Officer, |
|
— |
|
— |
|
— |
Suresh Krishnaswamy |
|
— |
|
— |
|
|
|
54 |
|
|
Chief Financial Officer |
|
— |
|
— |
|
— |
|
Non-Employee Directors: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Alan Pickerill |
|
I |
|
|
2025 |
|
|
|
56 |
|
|
Director |
|
Chair |
|
Member |
|
— |
Blaise Judja-Sato |
|
II |
|
|
2023 |
|
|
|
58 |
|
|
Director |
|
Member |
|
Chair |
|
— |
Peter Lee |
|
II |
|
|
2023 |
|
|
|
46 |
|
|
Lead Independent Director |
|
— |
|
Member |
|
Member |
Michael Blue |
|
III |
|
|
2024 |
|
|
|
44 |
|
|
Board Chair |
|
— |
|
— |
|
Member |
Cassandra Chandler |
|
III |
|
|
2024 |
|
|
|
65 |
|
|
Director |
|
Member |
|
— |
|
Chair |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
We summarize below the business experience of each of our directors and executive officers, including for each of our directors, the key experience and qualifications that led our Board to conclude that each such person should serve as one of our directors.
Michael Blue. Mr. Blue was appointed to the Board on February 4, 2022 and serves as its Chairman. Mr. Blue co-founded Privateer Holdings, a cannabis-focused private equity firm that founded a number of businesses (including Tilray, Inc. (Nasdaq: TLRY), Left Coast Ventures Inc. (NEO:GRAM.U), and Docklight Brands, Inc.) and acquired Legacy Leafly in 2011, which it owned until 2019, when it effected a capital restructuring and distributed its ownership in Legacy Leafly to Privateer Holdings’ shareholders. Mr. Blue served as Privateer Holdings’ CFO from 2011 until 2018, and as its Managing Partner from 2018 until its merger with Tilray, Inc. in 2019. He also served as the Treasurer at Legacy Leafly between 2011 and 2019, and as a director of Legacy Leafly from 2011 until 2022. Mr. Blue also currently serves as Managing Partner at Ten Eleven Management LLC (dba Privateer Management), which provides consulting and management services to several cannabis businesses, including Legacy Leafly from February 2019 through March 2021. Prior to co-founding Privateer Holdings, Mr. Blue served in several senior roles in private equity, including as Principal at Herrington, Inc. from July 2007 to October 2011 and as Vice President of de Vissher & Company from July 2005 to July 2007. Mr. Blue received his MBA from Yale School of Management in 2005.
111
We believe Mr. Blue's experience with Legacy Leafly and in private equity, investment banking, consulting, business development and operations and in the cannabis industry make him well qualified to serve as a director and Chairman of our Board.
Cassandra “Cassi” Chandler. Ms. Chandler was appointed to our Board on February 4, 2022. Ms. Chandler is President & CEO of Vigeo Alliance, which partners with businesses to grow emerging leaders, retain diverse talent and build an inclusive culture that thrives. Ms. Chandler also has served as an independent federal monitor with the New York Police Department since January 2017 and as an Adjunct Professor for Intelligence and Terrorism courses at Pace University’s Masters in Public Safety and Homeland Security Graduate Program since January 2019. Previously, Ms. Chandler was Senior Vice President for Business Operations at Bank of America from February 2015 to December 2017, where she was responsible for building an integrated framework to identify, evaluate and assess emerging regulatory risks and the operational effectiveness of enterprise coverage areas. She also served on its Global Diversity and Inclusion Advisory Board. Before joining the bank, Ms. Chandler spent nearly 24 years with the Federal Bureau of Investigation (“FBI”), where she directed white collar crimes, financial crimes, terrorism, cybercrimes investigations and foreign intelligence activities. She led the FBI’s training division, redesigned the FBI’s health care fraud and its criminal and domestic terrorism intelligence programs, and was appointed to the U.S. Senior Executive Service as the agency’s first Black female Special Agent Assistant Director and the FBI’s first female National Spokesperson and director of Public Affairs. Ms. Chandler has received awards such as the Senior Executive Service Presidential Rank Award of Meritorious Executive under President George W. Bush, the National Center for Women & Policing’s “Breaking the Glass Ceiling” award and the Norfolk NAACP Trailblazer Award. She served on the U.S. Marine Corps Red Team, which monitored the Corps’ assessment of expanding infantry officer roles to women and has served on many charitable and diversity boards. Ms. Chandler received her B.A. from Louisiana State University and her J.D. from Loyola University School of Law.
We believe Ms. Chandler's law enforcement, business and inclusivity experience makes her well qualified to serve as a director on our Board.
Blaise Judja-Sato. Mr. Judja-Sato has served as a member of the Board since February 4, 2022. Mr. Judja-Sato is passionate about using technology to address global challenges in creating opportunities. His professional global experience ranges from startups to large multinationals; from governments to non-governmental organizations; and from the United Nations to social ventures and philanthropic institutions. Mr. Judja-Sato has been serving on the Supervisory Board of Jumia Technology AG (NYSE: JMIA) since 2019 and is a member of the Risk and Audit, Nomination and Governance, and Compensation committees. He also has been serving on the global board of Grassroot Soccer, a global health non-profit, since July 2021. He is the founder of VillageReach, a nonprofit helping governments solve healthcare delivery challenges in low-resource communities; and the founder of the Resilience Trust, an organization dedicated to reimagining cardiovascular care in resource-challenged settings with a focus on Africa. He has previously held numerous senior leadership positions with global responsibilities, including Executive Director of the International Telecommunication Union; founder and President of the Nelson Mandela Foundation USA; co-head of global development initiatives at Google; director of international business development at Teledesic; regional managing director at AT&T; and senior consultant at Accenture. Mr. Judja-Sato earned an MBA from The Wharton School at the University of Pennsylvania, an M.S. in engineering from Telecom ParisTech, and a Master’s degree in mathematics from the University of Montpellier.
We believe Mr. Judja-Sato's business and financial expertise and experience make him well-qualified to serve as a director on our Board.
Suresh Krishnaswamy. Mr. Krishnaswamy has served as the Company’s Chief Financial Officer since September 2021. Prior to joining Leafly, Mr. Krishnaswamy served as Principal for NextLevel Business Consulting from November 2019 to August 2021, where he developed vision and strategy for large companies in financial services and technology. Prior to joining NextLevel, he served as Chief Financial Officer of Drift from June 2018 to October 2019, as a treasury and pricing strategy consultant for Remitly from April 2017 to November 2017, and as a principal at DataSense Analytics from June 2015 to April 2017. Mr. Krishnaswamy brings more than 25 years of experience in finance and technology, having served in leadership roles at global companies and marketplace startups. He has worked with major investment banks, including Credit Suisse, Bank of America (Fleet Boston Financial), Credit Agricole, and Barclays. Mr. Krishnaswamy holds a BS in Computer Science from the University of Pennsylvania and a MS in Computer Science from the University of Texas.
Peter Lee. Mr. Lee has served as a member of the Board since February 4, 2022. Mr. Lee served as Merida’s President from August 2019 until February 4, 2022, and Merida’s Chief Financial Officer, Secretary and a member of Merida’s board of directors from September 2019 until February 4, 2022. Mr. Lee has spent more than 20 years as an investment professional in both public markets and private equity. Since April 2018, Mr. Lee has been an independent investor and consultant for hedge funds. From 2011 to April 2018, he co-founded and was a Managing Partner at Sentinel Rock Capital, LLC, a
112
long/short equity oriented hedge fund. Prior to this, from 2009 to 2011, he was an Analyst and a Partner at Spring Point Capital, a long/short equity oriented hedge fund. From 2007 to 2009, he was the sector head for financial services and retail industries at Blackstone Kailix, the long/short equity hedge fund business of The Blackstone Group. From 2005 to 2007, he was an analyst at Tiger Management evaluating public investments. Mr. Lee joined Tiger Management out of business school. Earlier, Mr. Lee focused on growth private equity investing in financial services and financial technology companies as a senior associate at J.H Whitney & Company from 2000 to 2002 and an associate at Capital Z Partners from 1999 to 2000. Mr. Lee began his career in 1997 as an analyst at Morgan Stanley Capital Partners, the private equity investment fund of Morgan Stanley. Mr. Lee received a B.S. in Business Administration from the University of California at Berkeley Haas School of Business and an MBA from Stanford Graduate School of Business.
We believe Mr. Lee is well-qualified to serve as a director on our Board due to his business experience, including his consulting experience and business contacts and relationships.
Yoko Miyashita. Ms. Miyashita serves as the Chief Executive Officer of the Company and as a member of the Company’s Board. Ms. Miyashita was appointed as the Chief Executive Officer of Legacy Leafly in August 2020, after serving as Legacy Leafly’s General Counsel since May 2019. Ms. Miyashita previously served as a director of Legacy Leafly from 2020 to 2022 and was appointed as a director of our Board on February 4, 2022. Previously, Ms. Miyashita served in several roles, including as SVP and General Counsel, at Getty Images from July 2005 to April 2019. Prior to joining Getty Images, she practiced law with Perkins Coie LLP from November 2001 to June 2005 in Seattle, Washington. Ms. Miyashita has spent her career serving mission-driven companies navigating complex global legal and regulatory environments in order to bring meaningful and compelling products to market. She holds a J.D. from the University of Washington School of Law and a B.A. from the University of California, Berkeley.
We believe Ms. Miyashita's long-term vision for the Company and operational and historical expertise gained from serving as our Chief Executive Officer qualifies her to serve as a director on our Board.
Alan Pickerill. Mr. Pickerill has served as a member of the Board since February 4, 2022. Mr. Pickerill has served in a variety of finance and accounting roles over a 30+ year career, mainly for publicly traded technology companies. He is currently a board member and audit committee chair for Porch Group (Nasdaq: PRCH), a board member of Manson Construction and sits on the board of the YMCA of Greater Seattle. He also has served as an adjunct faculty member for the University of Washington Foster School EMBA program since December 2021. Mr. Pickerill served as Expedia Group’s Executive Vice President, Chief Financial Officer and Treasurer from September 2017 to December 2019 and had been with the company since 2008. Mr. Pickerill oversaw Expedia Group’s accounting, financial reporting and analysis, investor relations, treasury, internal audit, tax and global real estate teams. Previously, he served as Expedia Group’s Senior Vice President of Investor Relations and Treasurer. Mr. Pickerill began his career as an accountant for seven years at Deloitte and Touche before working at a variety of publicly traded technology and internet companies, including serving as Chief Financial Officer of INTERLINQ Software Corporation, as well as roles at Microsoft and Getty Images. Mr. Pickerill was licensed as a certified public accountant in Washington in 1991. Mr. Pickerill received a B.A. in Business and Accounting from the University of Washington’s Michael G. Foster School of Business.
We believe Mr. Pickerill's business and financial expertise and experience make him well-qualified to serve as a director on our Board.
Family Relationships
There are no family relationships between any of our directors, nominees, or executive officers. There also are no arrangements or understandings between any director, nominee, or executive officer and any other person pursuant to which he or she has been or will be selected as a director and/or executive officer.
Audit Committee Financial Expert
Each member of our Audit Committee qualifies as an “audit committee financial expert” as defined by the SEC, including as a result of his or her business experience described above. In addition, each of our Audit Committee members satisfies the independence criteria set forth in Rule 10A-3 under the Exchange Act and the listing standards of Nasdaq.
Code of Ethics and Business Conduct
We have adopted a code of ethics and business conduct that applies to all of our directors, officers and employees, including our principal executive officer, principal financial officer and principal accounting officer, which is available on our website at https://investor.leafly.com/. Our code of business conduct is a “code of ethics,” as defined in Item 406(b) of Regulation
113
S-K. We expect to make any legally required disclosures regarding amendments to, or waivers of, provisions of our code of ethics on our website.
Delinquent Section 16(a) Reports
SEC rules require our executive officers and directors, and persons who own more than 10% of a registered class of our equity securities, to file initial statements of beneficial ownership (Form 3) and statements of changes in beneficial ownership (Forms 4 and 5) of our common stock with the SEC. Based solely on a review of the forms filed with the SEC and/or written representations that no additional forms were required, we believe that all of our executive officers, directors and greater than 10% beneficial owners complied with all applicable filing requirements for the 2022 fiscal year, except as follows:
Item 11. EXECUTIVE COMPENSATION
Overview
We have opted to comply with the executive compensation disclosure rules applicable to emerging growth companies, as Leafly is an emerging growth company. The scaled down disclosure rules are those applicable to “smaller reporting companies,” as such term is defined in the rules promulgated under the Securities Act, and which require compensation disclosure for (i) our principal executive officer; (ii) two of our other most highly compensated executive officers, whose total compensation for 2022 exceeded $100,000 and who were serving as executive officers as of December 31, 2022; and (iii) up to two additional individuals who would have been named executive officers under (ii) but for the fact that such individuals no longer served as executive officers as of December 31, 2022. We refer to these individuals as our “NEOs.” For fiscal year 2022, our NEOs were Yoko Miyashita, our Chief Executive Officer, Suresh Krishnaswamy, our Chief Financial Officer, and Samuel Martin, our former Chief Operating Officer who left the Company as of January 1, 2023.
Employment Arrangements with our Named Executive Officers
Yoko Miyashita, Chief Executive Officer
Ms. Miyashita serves as Leafly’s Chief Executive Officer on an at-will basis pursuant to an employment agreement she entered into with Legacy Leafly, effective as of August 17, 2020 (the “CEO Agreement”). The CEO Agreement provides for (i) a base salary of $400,000, which may be adjusted by our Board or our Compensation Committee based on its annual performance review practices, and (ii) a target annual bonus opportunity equal to 50% of Ms. Miyashita’s then base salary, which may be awarded in cash and/or equity at the discretion of our Compensation Committee. As provided in the CEO Agreement, Ms. Miyashita: (i) received stock option awards in 2021, which are described below under, “— Performance-Based Option Awards” and (ii) is eligible to receive long-term equity incentive compensation awards, at the discretion of our Compensation Committee, pursuant to our equity incentive compensation plans and programs in effect from time-to-time. See “— Outstanding Equity Awards at Fiscal Year-End” below for a summary of Ms. Miyashita’s outstanding equity awards as of December 31, 2022. Ms. Miyashita also is eligible to participate in the employee benefit plans generally available to our employees.
The CEO Agreement provides that if any payments or benefits provided for under the agreement or otherwise payable to Ms. Miyashita are considered “excess parachute payments” under Section 280G of the Code, then such payments will be limited to the greatest amount that may be paid to Ms. Miyashita under Section 280G of the Code without causing any loss of deduction to Leafly under such Code section, but only if, by reason of such reduction, the “net after tax benefit” to Ms. Miyashita will exceed the net after tax benefit if such reduction was not made.
For a description of the payments and other benefits that Ms. Miyashita would be entitled to upon certain terminations of employment, see below under “Potential Payments upon Termination of Employment or Change in Control.”
114
Suresh Krishnaswamy, Chief Financial Officer
Mr. Krishnaswamy serves as Leafly’s Chief Financial Officer on an at-will basis pursuant to an offer letter he entered into with Legacy Leafly, dated September 13, 2021, effective as of September 20, 2021 (the “CFO Letter”). The CFO Letter provides for (i) a base salary of $375,000, which may be adjusted by our Board or our Compensation Committee based on its annual performance review practices, and (ii) a target annual bonus opportunity equal to 40% of Mr. Krishnaswamy’s then base salary, which may be awarded in cash and/or equity at the discretion of our Compensation Committee. Pursuant to the terms of the CFO Letter, Mr. Krishnaswamy (i) received certain “new-hire” equity awards in 2021 and 2022, which are described below under “—Long-Term Equity Incentive Compensation” and (ii) is eligible to receive long-term equity incentive compensation awards, at the discretion of our Compensation Committee, pursuant to our equity incentive compensation plans and programs in effect from time-to-time. See “— Outstanding Equity Awards at Fiscal Year-End” below for a summary of Mr. Krishnaswamy’s outstanding equity awards as of December 31, 2022. Mr. Krishnaswamy also is eligible to participate in the employee benefit plans generally available to our employees.
Samuel Martin, former Chief Operating Officer
Mr. Martin served as our Chief Operating Officer until January 1, 2023 pursuant to a promotion offer letter he entered into with Legacy Leafly, dated October 12, 2021, effective as of August 1, 2021 (the “COO Letter”). The COO Letter provided for a base salary of $385,000 and a target annual bonus opportunity of up to 40% of Mr. Martin’s then base salary. Pursuant to the terms of the COO Letter, Mr. Martin (i) received RSU grants in 2022, which are described below under “— Long-Term Equity Incentive Compensation” and (ii) was eligible to receive long-term equity incentive awards, at the discretion of the Compensation Committee, pursuant to our equity incentive compensation plans and programs in effect from time-to-time. See “— Outstanding Equity Awards at Fiscal Year-End” below for a summary of Mr. Martin’s outstanding equity awards as of December 31, 2022. Mr. Martin also was eligible to participate in the employee benefit plans generally available to our employees.
Principal Components of Our Executive Compensation Program
This section discusses the material components of our executive compensation program for our NEOs. Leafly became a publicly-traded company in February 2022, and as such, we expect that our executive compensation program will evolve over time, while still supporting Leafly’s overall business and compensation objectives.
Base Salary
Base salaries are intended to provide a level of compensation sufficient to attract and retain an effective management team, when considered in combination with the other components of the executive compensation program and compared against compensation in the market for similar positions. In general, we seek to provide a base salary level designed to reflect each executive officer’s scope of responsibility and accountability. Please see the “Salary” column in the Summary Compensation Table below for the base salary amounts paid to each of our NEOs for their services during the years presented.
Annual Bonus Plan
In 2022, in order to appropriately motivate and reward our employees, including our NEOs, and to further align our NEOs’ pay with Company performance, we established our 2022 Annual Incentive Plan (“2022 AIP”) that provided for incentive awards to be paid in cash, shares of our common stock, or in a combination thereof, as determined by the Compensation Committee, based upon its determination of achievement of pre-established performance goals for fiscal year 2022. For each employee eligible to receive awards under the 2022 AIP, including our NEOs, the 2022 AIP established minimum (0%), target (100%) and maximum (150%) award levels, computed as a percentage of each such employee’s annual base salary. To be eligible to receive any bonus, each NEO must be employed with the Company at the time such payment is made.
The table below sets forth the target award level, as a percentage of base salary, for each of our NEOs for fiscal year 2022.
Named Executive Officer |
Target Award % of Salary |
2022 Target Award |
Yoko Miyashita |
50% |
$200,000 |
Suresh Krishnaswamy |
40% |
$150,000 |
Samuel Martin |
40% |
$154,000 |
Our 2022 AIP performance goals included top line revenue and adjusted EBITDA targets for fiscal year 2022 (each a “Performance Goal,” as defined below), with potential bonus payouts allocated 50% to each Performance Goal and
115
achievement of each Performance Goal determined independently of the other, with no linear interpolation applicable to any results.
The following tables set forth the Performance Goals and payment thresholds established by our Compensation Committee for our NEOs for fiscal year 2022:
2022 Top Line Revenue (1) |
Payout Percentage |
$55 million |
100% |
Less than $55 million |
0% |
Adjusted EBITDA (1) |
Payout Percentage |
Loss equal to or less than $27 million |
100% |
Loss greater than $27 million but equal to or less than loss of $27.5 million |
75% |
Loss greater than $27.5 million but equal to or less than loss of $28.5 million |
50% |
Loss greater than $28.5 million |
0% |
In 2023, after assessing the Company’s achievement of the 2022 Performance Goals, the Compensation Committee approved that (i) the Company’s Top Line Revenue was less than $55 million, resulting in 0% payout for the Top Line Revenue Performance Goal; and (ii) the Company’s Adjusted EBITDA loss was less than $27 million, resulting in 100% payout for the Adjusted EBITDA Performance Goal. As such, the Compensation Committee approved bonus payments under the 2022 AIP for Ms. Miyashita and Mr. Krishnaswamy of $97,373 and $73,000, respectively, representing approximately 50% of each executive’s target bonus eligibility. Mr. Martin was not eligible to receive a bonus payment due to his departure on January 1, 2023.
The Committee approved bonuses to be paid 75% in cash and 25% in an RSU award under our 2021 Plan. The RSU award vests in four equal installments over four months commencing in March 2023 and ending in June 2023 (“2022 AIP RSU Awards”). Because the 2022 AIP RSU Awards are intended to compensate our NEOs for their services and performance in 2022, vesting of such awards is not conditioned on the NEOs’ continued service with the Company. See the “Non-Equity Incentive Plan Compensation” column in the Summary Compensation Table below, including the footnotes thereto, for the 2022 AIP cash bonuses earned by our NEOs for performance during fiscal year 2022. The 2022 AIP RSU Awards are not included in the Summary Compensation Table below because the grants were made in 2023.
Long-Term Equity Incentive Compensation
Our NEOs are eligible to receive equity-based awards at the discretion of our Compensation Committee under our 2021 Plan. Prior to the Business Combination, our NEOs received grants of stock options under our 2018 Plan. Equity awards are intended to further align the interests of our NEOs with the interests of our stockholders and emphasize long-term performance by linking compensation to achievement of performance goals and share price appreciation over a multi-year period and to also support the retention of our management team. Our equity award program for NEOs is determined annually by the Compensation Committee. To date, our NEOs have received grants of service- and performance-based RSUs under our 2021 Plan and service- and performance-based stock options under our 2018 Plan, as described below.
Performance-Based Stock Unit (“PSUs”) Awards
In 2022, the Compensation Committee granted multi-year PSU awards to our NEOs under our 2021 Plan (the “2022 PSU Awards”). Each 2022 PSU Award consists of three tranches, with the number of PSUs in each tranche generally equal to one-third of the total number of PSUs granted under each such award. Each tranche represents the number of PSUs that are eligible to vest over three separate annual performance periods (each a “Performance Period”). The “First Performance
116
Period” was from January 1, 2022 to December 31, 2022; and the “Second Performance Period” is from January 1, 2023 to December 31, 2023; and the “Third Performance Period” is from January 1, 2024 to December 31, 2024. The PSUs in each tranche are eligible to vest in the corresponding Performance Period based on achievement of “Top Line Revenue” and “Adjusted EBITDA” targets that are set and approved by our Compensation Committee annually for each Performance Period (the “PSU Performance Goals”), with such PSUs allocated 50% to each Performance Goal for each Performance Period. If all or a portion of the PSUs do not vest for a particular Performance Period, such unvested PSUs will remain outstanding and will be eligible for vesting if we achieve a $1 billion market capitalization for any 20 days during a 30-day period on or before February 4, 2026 (the “PSU Market Cap Milestone”). If the PSU Market Cap Milestone is achieved on or before February 4, 2026, all then outstanding unvested PSUs will become fully vested as of the date the Compensation Committee makes a determination confirming that the PSU Market Cap Milestone has been achieved.
In 2022, the Compensation Committee approved PSU Performance Goals and the payout percentages for the First Performance Period that are identical to the Performance Goals and payout percentages approved by the Compensation Committee under our 2022 AIP, as described above. At the time we granted the 2022 PSU Awards, we determined that the grant date fair value of the portion of the award subject to the 2022 Top Line Revenue target was $0, based on a conclusion at the date of grant that such target would not be achievable.
In 2023, after assessing the Company’s achievement of the 2022 Performance Goals, the Compensation Committee made a final determination confirming that (i) the Company’s Top Line Revenue was less than $55 million, resulting in 0% payout for the Top Line Revenue Performance Goal; and (ii) the Company’s Adjusted EBITDA loss was less than $27 million, resulting in 100% payout for the Adjusted EBITDA Performance Goal. As a result of such determination, on March 13, 2023, 50% of each of Ms. Miyashita’s and Mr. Krishnaswamy’s 2022 PSU Awards eligible to vest in the First Performance Period vested, and the 50% of the PSUs that did not vest because the Top Line Revenue Performance Goal was not met will remain outstanding and eligible to vest if the Company achieves the PSU Market Cap Milestone. Mr. Martin’s 2022 PSU Awards were forfeited and not eligible for vesting due to his departure.
Time-Based RSU Awards
In 2022, we also granted time-based RSU awards under our 2021 Plan to each of our NEOs, representing (i) grants made to Messrs. Krishnaswamy and Martin in connection with the NEO’s hiring and promotion, respectively (“New Hire RSU Awards”); and (ii) annual long-term equity incentive grants made to Ms. Miyashita and Mr. Martin (“Annual RSU Awards”). The New Hire RSU Awards are eligible to vest 25% in the first calendar month following the first anniversary of the recipient’s employment commencement date and then in equal quarterly installments thereafter, on the 20th day of every third month for three years until the awards fully vest, subject to the NEO’s continuous employment. The Annual RSU Awards are eligible to vest quarterly in 1/16th increments, on the 20th day of every third month for four years until the awards fully vest, subject to the NEO’s continuous employment.
Performance-Based Option Awards
In 2021, Legacy Leafly granted Ms. Miyashita and Mr. Krishnaswamy performance-based option awards, as provided under the CEO Agreement and the CFO Letter, respectively (the “Performance Options”), with such grants consisting of a “Liquidity Event Option” and a “Milestone Option”. As previously disclosed, the number of shares underlying each NEO’s Performance Options was adjusted following the closing of the Business Combination and are presented in the “— Outstanding Equity Awards at Fiscal Year-End” table, as adjusted. Each Performance Option is eligible to vest as follows:
117
Time-Based Option Awards
Prior to 2022, Legacy Leafly granted time-based stock option awards to each of our NEOs, which generally are eligible to vest 25% on the first anniversary of the applicable vesting commencement date and in 1/48th increments for each subsequent month of the NEO’s continuous employment, until the awards fully vest after four years. Under the terms of the stock option agreements, executive officers have the option of exercising stock options prior to vesting and receive restricted stock upon exercise, which is subject to the same vesting conditions applicable to the underlying stock options.
Retirement Benefits
We offer a tax-qualified defined contribution retirement savings plan (the “401(k) Plan”), pursuant to which our eligible employees, including our NEOs, are able to voluntarily contribute a percentage of their annual compensation on a pre- and post-tax basis, up to the limits prescribed by the Internal Revenue Service. Each pay period, we offer a discretionary 401(k) Company matching contribution for eligible employees who participate in the 401(k) Plan, including our NEOs, of up to 100% of salary deferrals that do not exceed 1% of eligible compensation plus 50% of salary deferrals between 1% and 6% of eligible compensation. Generally, “eligible compensation” used for purposes of calculating contributions under the 401(k) Plan is the amount paid to the employee as base salary, overtime earnings, bonuses and commissions. Each of our NEOs was eligible to participate in the 401(k) Plan in 2022. We do not sponsor any nonqualified deferred compensation plans or pension plans.
2022 Summary Compensation Table
Name and Principal Position |
|
Year |
|
|
Salary |
|
|
Bonus (1) |
|
|
Stock |
|
|
Option |
|
|
Non-Equity Incentive Plan Compensation (4) |
|
|
All Other Compensation (5) ($) |
|
|
Total |
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Yoko Miyashita |
Chief Executive Officer |
|
|
2022 |
|
|
$ |
389,489 |
|
|
$ |
— |
|
|
$ |
455,914 |
|
(6) |
$ |
1,815,345 |
|
(7) |
$ |
73,030 |
|
|
$ |
32,719 |
|
(8) |
$ |
2,766,497 |
|
|
|
|
|
2021 |
|
|
|
400,024 |
|
|
|
246,000 |
|
|
|
— |
|
|
|
981,532 |
|
(9) |
|
— |
|
|
|
28,650 |
|
(10) |
|
1,656,206 |
|
Suresh Krishnaswamy |
Chief Financial Officer |
|
|
2022 |
|
|
|
365,146 |
|
|
|
— |
|
|
|
359,822 |
|
(11) |
|
— |
|
|
|
54,750 |
|
|
|
20,009 |
|
(12) |
|
799,727 |
|
|
|
|
|
2021 |
|
|
|
101,565 |
|
|
|
50,000 |
|
|
|
— |
|
|
|
914,870 |
|
(13) |
|
— |
|
|
|
90,251 |
|
(14) |
|
1,156,686 |
|
Samuel Martin |
Chief Operating Officer (former) |
|
|
2022 |
|
|
|
374,881 |
|
|
|
— |
|
|
|
633,943 |
|
(15) |
|
— |
|
|
|
— |
|
|
|
21,803 |
|
(16) |
|
1,030,627 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
118
119
120
Outstanding Equity Awards at Fiscal Year-End
The following table sets forth certain information with respect to outstanding equity awards held by our NEOs as of December 31, 2022:
121
|
|
|
|
|
|
Option Awards |
|
Stock Awards |
|
|||||||||||||||||||||||||||||
Name |
|
Grant Date |
|
|
|
Number of Securities Underlying Unexercised Options Exercisable (1) |
|
|
Number of Securities Underlying Unexercised Options Unexercisable (1) |
|
|
Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options |
|
|
Option Exercise Price |
|
|
Option Expiration Date |
|
Number of Shares or Units of Stock that Have Not Vested |
|
|
Market Value of Shares or Units of Stock that Have Not Vested |
|
|
Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights that Have Not Vested |
|
|
Equity Incentive Plan Awards: Market or Payout Value of Shares, Units or Other Rights that Have Not Vested (2) |
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Yoko Miyashita: |
|
4/16/2020 |
|
|
|
|
13,340 |
|
|
|
— |
|
|
|
— |
|
|
$ |
1.22 |
|
|
4/15/2030 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
11/25/2020 |
|
(3) |
|
|
81,253 |
|
|
|
10,261 |
|
|
|
— |
|
|
$ |
1.10 |
|
|
6/30/2029 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
5/4/2021 |
|
|
|
|
47,392 |
|
|
|
— |
|
|
|
— |
|
|
$ |
1.10 |
|
|
5/3/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
5/4/2021 |
|
(4) |
|
|
372,406 |
|
|
|
266,005 |
|
|
|
— |
|
|
$ |
1.10 |
|
|
5/3/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
5/4/2021 |
|
(5) |
|
|
239,404 |
|
|
|
— |
|
|
|
239,404 |
|
|
$ |
1.10 |
|
|
5/3/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
5/4/2021 |
|
(6) |
|
|
— |
|
|
|
— |
|
|
|
478,808 |
|
|
$ |
1.10 |
|
|
5/3/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
8/17/2022 |
|
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
168,054 |
|
|
$ |
109,554 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
10/6/2022 |
|
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
67,549 |
|
|
$ |
44,035 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
10/6/2022 |
|
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
$ |
— |
|
|
|
251,309 |
|
|
$ |
163,828 |
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Suresh Krishnaswamy: |
|
10/27/2021 |
|
(5) |
|
|
— |
|
|
|
— |
|
|
|
32,833 |
|
|
$ |
8.26 |
|
|
10/26/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
10/27/2021 |
|
(6) |
|
|
— |
|
|
|
— |
|
|
|
65,666 |
|
|
$ |
8.26 |
|
|
10/26/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
10/27/2021 |
|
(9) |
|
|
979 |
|
|
|
2,154 |
|
|
|
— |
|
|
$ |
8.26 |
|
|
10/26/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
11/1/2021 |
|
(9) |
|
|
30,917 |
|
|
|
68,017 |
|
|
|
— |
|
|
$ |
8.26 |
|
|
10/31/2031 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
8/17/2022 |
|
(10) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
110,930 |
|
|
$ |
72,315 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
10/6/2022 |
|
(10) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
44,589 |
|
|
$ |
29,068 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
10/6/2022 |
|
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
$ |
— |
|
|
|
98,728 |
|
|
$ |
64,361 |
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Samuel Martin: |
|
9/18/2015 |
|
(11) |
|
|
188 |
|
|
|
— |
|
|
|
— |
|
|
$ |
0.13 |
|
|
9/17/2025 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
2/24/2017 |
|
(11) |
|
|
475 |
|
|
|
— |
|
|
|
— |
|
|
$ |
0.16 |
|
|
2/23/2027 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
11/29/2018 |
|
(11) |
|
|
93,334 |
|
|
|
— |
|
|
|
— |
|
|
$ |
0.40 |
|
|
11/28/2028 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
4/16/2020 |
|
(11) |
|
|
12,312 |
|
|
|
— |
|
|
|
— |
|
|
$ |
1.22 |
|
|
4/15/2030 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
11/25/2020 |
|
(11) |
|
|
8,208 |
|
|
|
— |
|
|
|
— |
|
|
$ |
1.10 |
|
|
3/27/2029 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
11/25/2020 |
|
(11) |
|
|
14,364 |
|
|
|
2,052 |
|
|
|
— |
|
|
$ |
1.10 |
|
|
6/30/2029 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
12/15/2020 |
|
(11) |
|
|
84,477 |
|
|
|
71,481 |
|
|
|
— |
|
|
$ |
1.10 |
|
|
12/14/2030 |
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
8/17/2022 |
|
(11) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,019 |
|
|
$ |
39,126 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
8/17/2022 |
|
(11) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
95,826 |
|
|
$ |
62,469 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
10/6/2022 |
|
(11) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24,125 |
|
|
$ |
15,727 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
10/6/2022 |
|
(11) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38,517 |
|
|
$ |
25,109 |
|
|
|
— |
|
|
$ |
— |
|
||||
|
|
10/6/2022 |
|
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
$ |
— |
|
|
|
173,497 |
|
|
$ |
113,103 |
|
||||
122
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Potential Payments upon Termination of Employment or Change in Control
Voluntary Resignation or Termination for Cause or Due to Death or Disability
Yoko Miyashita, CEO
The CEO Agreement provides that if Ms. Miyashita voluntarily resigns other than for “Good Reason” or the Company terminates her employment for “Cause” or in the event of her death or “Disability” (each as defined in the CEO Agreement), no further payments would be due to Ms. Miyashita, except that she would be entitled to (i) any amounts of compensation that were earned, accrued or owing but not yet paid and (ii) any benefits accrued or earned under the Company’s benefit plans and programs or to which she is otherwise entitled under applicable law (clause (i) and (ii) collectively, the “Accrued Compensation and Benefits”).
For Ms. Miyashita, “Cause” is defined in the CEO Agreement as any of the following: (a) failure to perform the assigned duties or responsibilities pursuant to the agreement (other than a failure resulting from Disability) after written notice thereof from the Company describing Ms. Miyashita’s failure to perform such duties or responsibilities, and failure by Ms. Miyashita within 30 calendar days from the date of such written notice to remedy such performance failure; (b) engagement in any act
123
of dishonesty, fraud, misrepresentation, embezzlement or other acts that are or would reasonably be expected to be injurious in a material respect to the Company; (c) a violation of any federal or state law or regulation applicable to our business; (d) a breach of any confidentiality agreement or invention assignment agreement between Ms. Miyashita and the Company; (e) conviction of, or entering a plea of nolo contendere to, any crime (other than minor traffic violations) or any act of moral turpitude; (f) continuing gross negligence or gross misconduct after written notice thereof from the Company describing the applicable conduct, and failure to cure, if curable, within 10 calendar days from the date of such written notice to remedy such conduct; or (g) a breach of any material term of the CEO Agreement, the Confidential Information Agreement or any other employment-related agreement between Ms. Miyashita and the Company.
The CEO Agreement defines “Good Reason” as Ms. Miyashita’s resignation within 30 days after the expiration of any Company cure period following the occurrence of one or more of the following, without Ms. Miyashita’s consent: (a) a material reduction of authority, duties or responsibilities; (b) a reduction of more than 10% in base cash compensation as in effect immediately prior to such reduction, unless the Company also similarly reduces the base cash compensation of all other senior executives of the Company; (c) a material change in the geographic location of the primary work facility or location; provided, that a relocation of less than 25 miles from the then-present location will not be considered a material change in geographic location; (d) a material breach by the Company of the CEO Agreement; (e) prior to a Change in Control, Ms. Miyashita no longer serving as a member of the Board of Directors (other than pursuant to voluntary resignation from the Board of Directors); or (f) following a Change in Control, the failure of the Company to obtain the assumption of the material obligations of the CEO Agreement by any successor(s).
“Disability” has the same meaning provided in Treasury Regulation Section 1.409A-3(i)(4)(i).
NEOs Other than CEO
If any NEO, other than Ms. Miyashita, terminates service from the Company for any reason, no further payments would be due to the NEO, except that the NEO would be entitled to payment of Accrued Compensation and Benefits.
Outstanding Equity Awards
If an NEO terminates service from the Company for any reason, other than in connection with a change in control (as defined in the applicable plan), any unvested equity awards would be forfeited immediately. The NEO generally would have 90 days after the date of termination to exercise any vested, unexercised stock options. If the Company terminates an NEO for “cause” (as defined in the applicable plan) any vested, unexercised stock options would expire immediately. If an NEO’s service terminates due to “disability” (as defined in the applicable plan) or death, the NEO would have 12 months and 18 months after the date of termination, respectively, to exercise any vested, unexercised stock options.
Qualifying Termination of CEO – Not in Change in Control Period
Under the CEO Agreement, if Ms. Miyashita incurs a “Qualifying Termination” outside of a “Change in Control Period,” she is entitled to the following: (a) cash severance payment equal to 100% of her annual base salary at the time of such termination, payable over the 12 months following termination and (b) reimbursement for COBRA premiums, grossed up for income taxation, for coverage up to 12 months. A Qualifying Termination is defined in the CEO Agreement as a termination by (a) the Company other than for Cause, death or Disability or (b) Ms. Miyashita for “Good Reason,” as defined in the CEO Agreement and summarized above. If there is a Qualifying Termination outside of a Change in Control Period, Ms. Miyashita’s unvested equity awards would be forfeited immediately, and she would have 90 days after her date of termination to exercise any vested, unexercised stock options, after which they would expire. Payment of severance is subject to effectiveness of a release of claims by Ms. Miyashita and resignation from the Board.
A “Change in Control” is defined in the 2018 Plan, and a “Change in Control Period” is the period commencing 90 days prior to, and ending 12 months following, the effective date of a Change in Control.
In connection with the Business Combination, the CEO Agreement was amended to provide that any awards that may be received by Ms. Miyashita in the future under the Earn-Out Plan will remain outstanding and eligible to vest following a Qualifying Termination of Ms. Miyashita’s employment.
Termination of NEO During Change in Control Period
Yoko Miyashita, CEO
124
Under the CEO Agreement, if Ms. Miyashita incurs a “Qualifying Termination” during a “Change in Control Period,” she is entitled to the following: (a) lump sum cash severance payment equal to the sum of (i) 100% of her annual base salary at the time of such termination, plus (ii) her target annual bonus; (b) reimbursement for COBRA premiums, grossed up for income taxation, for coverage up to 12 months; and (c) accelerated vesting of all equity awards in full, and for purposes of determining the number of shares that will vest pursuant to the foregoing with respect to any performance-based equity award, the applicable performance criteria will be deemed to have attained at a 100% level. Ms. Miyashita would have 90 days after such termination to exercise vested, unexercised options, after which they would expire. Payment of severance is subject to effectiveness of a release of claims by Ms. Miyashita and resignation from the Board.
NEOs Other than CEO
If any NEO, other than Ms. Miyashita, is terminated in connection with a change in control (as defined in the applicable plan), no further payments would be due to the NEO, except that the NEO would be entitled to payment of Accrued Compensation and Benefits and the treatment below for equity awards.
Equity Awards for NEOs Other than CEO
Our NEO’s unvested Liquidity Event and Milestone Option awards under the 2018 Plan will vest in full if there is a Change in Control, as defined under the 2018 Plan and described above. Any unvested time-based option awards under the 2018 Plan will be forfeited and not vest if there is a termination in connection with a Change in Control. If an NEO, other than our CEO, incurs a termination of service from the Company on or within 6 months of a change in control as defined in the 2021 Plan, any unvested RSU awards under the 2021 Plan will fully vest and be paid in full, with any applicable performance conditions deemed achieved (i) for any completed performance period, based on actual performance, or (ii) for any partial or future performance period, at the greater of the target level or actual performance, in each case as determined by the Committee, unless otherwise provided in the NEO’s award agreement.
Compensation Committee Interlocks and Insider Participation
No person who served on the Compensation Committee in the Company’s last completed fiscal year was at any time during fiscal year 2022, or at any other time, one of our officers or employees. None of our executive officers has served as a director or member of a compensation committee (or other committee serving an equivalent function) of any entity, one of whose executive officers served as a director of our Board or member of our Compensation Committee. Peter Lee currently serves on the Compensation Committee and served as Merida’s President, Chief Financial Officer and Secretary until the closing of the Business Combination, but did not receive compensation for such service, other than reimbursement for out-of-pocket expenses incurred in connection with activities on Merida’s behalf.
2022 Director Compensation
The Board determines the form and amount of director compensation after its review of recommendations made by the Compensation Committee. No individual meeting fees are paid for either Board meetings or committee meetings. We pay or reimburse travel and other expenses incurred by our non-employee directors in attending in-person Board meetings. In 2022 following the Business Combination, we paid each of our non-employee directors (Ms. Miyashita is not compensated for her role on the Board), a combination of equity and cash as outlined below:
125
Dollar values for our directors’ RSU grants were converted into a number of RSUs based on our 60 day average trading price ending on a date prior to the grant date.
126
Compensation for non-employee directors during 2022 was as follows:
Name (1) |
|
Fees Earned or Paid in Cash |
|
|
Stock Awards (2) |
|
|
Total |
|
|||
|
|
|
|
|
|
|
|
|
|
|||
Michael Blue |
|
$ |
85,000 |
|
|
$ |
63,499 |
|
|
$ |
148,499 |
|
Cassandra Chandler |
|
|
80,000 |
|
|
|
59,069 |
|
|
|
139,069 |
|
Blaise Judja-Sato |
|
|
85,000 |
|
|
|
59,069 |
|
|
|
144,069 |
|
Peter Lee |
|
|
67,000 |
|
|
|
59,069 |
|
|
|
126,069 |
|
Alan Pickerill |
|
|
87,000 |
|
|
|
59,069 |
|
|
|
146,069 |
|
|
|
|
|
|
|
|
|
|
|
|||
127
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following tables set forth information about the beneficial ownership of our common stock, that is owned as of March 3, 2023 by:
We have determined beneficial ownership for the purposes of the following table in accordance with the rules and regulations of the SEC. A person is a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to direct the voting of the security, or “investment power,” which includes the power to dispose of or to direct the disposition of the security or has the right to acquire such powers within 60 days. Unless otherwise noted in the footnotes to the following tables, and subject to applicable community property laws, we believe the persons and entities named in the table have sole voting and investment power with respect to their beneficially owned shares of common stock and warrants.
We based our calculation of the percentage of beneficial ownership on 40,307,773 shares of our common stock outstanding as of March 3, 2023. In computing the number of shares of common stock beneficially owned by a person and such person's percentage of ownership of all outstanding shares, we deemed as owned and outstanding for such person those shares of common stock subject to options or warrants that are currently exercisable or exercisable within 60 days of March 3, 2023 and RSUs held by that person that will vest within 60 days of March 3, 2023. We, however, did not deem such shares as outstanding for the purpose of computing the percentage ownership of any other person.
Name of Beneficial Owners (1) |
|
Number of Shares |
|
|
% of Outstanding |
|
||
|
|
|
|
|
|
|
||
5% Stockholders: |
|
|
|
|
|
|
||
Brendan Kennedy (2) |
|
|
3,434,776 |
|
|
|
8.5 |
% |
Michael Blue (3) |
|
|
2,948,415 |
|
|
|
7.3 |
% |
Executive Officers and Directors of the Company: |
|
|
|
|
|
|
||
Michael Blue (3) |
|
|
2,948,415 |
|
|
|
7.3 |
% |
Yoko Miyashita (4) |
|
|
917,484 |
|
|
|
2.2 |
% |
Peter Lee (5) |
|
|
593,060 |
|
|
|
1.5 |
% |
Sam Martin (6) |
|
|
307,037 |
|
|
* |
|
|
Suresh Krishnaswamy (7) |
|
|
114,998 |
|
|
* |
|
|
Alan Pickerill |
|
|
17,950 |
|
|
* |
|
|
Blaise Judja-Sato |
|
|
17,950 |
|
|
* |
|
|
Cassandra Chandler |
|
|
14,985 |
|
|
* |
|
|
All directors and executive officers as a group |
|
|
4,931,879 |
|
|
|
11.8 |
% |
|
|
|
|
|
|
|
||
* Indicates less than 1 percent.
128
Equity Compensation Plan Information
As of December 31, 2022, Leafly had the following equity compensation plans under which equity securities of the registrant were authorized for issuance:
|
|
|
(a) |
|
|
(b) |
|
|
(c) |
|
|||
Plan Category |
|
|
Number of securities to be issued upon exercise of outstanding options, warrants and rights (2) |
|
|
Weighted-average exercise price of outstanding options, warrants and rights (3) |
|
|
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (4) |
|
|||
|
|
|
|
|
|
|
|
|
|
|
|||
Equity compensation plans approved by security holders (1) |
|
|
|
5,590,208 |
|
|
$ |
1.75 |
|
|
|
3,823,358 |
|
|
|
|
|
|
|
|
|
|
|
|
|||
Equity compensation plans not approved by security holders |
|
|
|
— |
|
|
$ |
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|||
Total |
|
|
|
5,590,208 |
|
|
$ |
1.75 |
|
|
|
3,823,358 |
|
|
|
|
|
|
|
|
|
|
|
|
|||
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
129
Related Person Transactions Policy
Our Board has adopted a written related person transaction policy setting forth the policies and procedures for the review and approval or ratification of related person transactions. This policy covers, with certain exceptions set forth in Item 404 of Regulation S-K under the Securities Act, any transaction or arrangement, or any series of transactions or arrangements in which the Company (or its direct and indirect subsidiaries and controlled entities) is to be a participant, whether or not the Company is a party, and a related party has a direct or indirect material interest in such transaction (unless clearly incidental in nature or it is determined in accordance with the related person transaction policy that such interest is immaterial in nature such that further review is not warranted), including without limitation sales, purchases or other transfers of real or personal property, use of property and equipment by lease or otherwise, services received or provided, the borrowing and lending of funds, guarantees of loans or other undertakings and the employment by the Company of an immediate family member of a related person or a change in the terms or conditions of employment of such an individual that is material to such individual.
In reviewing and approving any such transactions, the Audit Committee is tasked, in light of the relevant facts and circumstances whether the transaction is in, or not inconsistent with, the best interests of the Company, including, but not limited to, the position or relationship of the related person with the Company, materiality of the transaction, business purpose for and rationale of the transaction, whether the transaction is on terms comparable to those available on an arms-length basis or is on terms that the Company offers generally to persons who are not related persons, whether the transaction is in the ordinary course of business, the effect of the transaction on the Company’s business and operations, potential for a conflict of interest, and overall fairness. All such approved transactions must be reviewed and approved or ratified by the Audit Committee, taking into account the foregoing considerations, during the next meeting of the Audit Committee, or sooner if determined to be necessary by the Company’s legal counsel.
Related Person Transactions
Merida Related Person Transactions
Sponsor Shares
Concurrently with the execution of the Merger Agreement, Leafly, Merida, and the Sponsor entered into an agreement (the “Sponsor Agreement”), which provided that (a) at the Closing, a number of Sponsor Shares equal to the quotient of (i) the amount by which certain unpaid expenses incurred by or on behalf of Merida (the “Outstanding Merida Expenses”) exceed $6.5 million, divided by (ii) $10.00 (such shares, the “Forfeited Shares”), will be forfeited by the Sponsor and canceled by Merida, (b) the parties will enter into an amendment to the existing Stock Escrow Agreement (“Stock Escrow Amendment”) providing for the forfeiture and cancellation of the Forfeited Shares and the escrow of all remaining Sponsor Shares until certain earn-out conditions are met, and (c) the Sponsor Shares will be subject to transfer restrictions for a period of 180 days following the completion of the Business Combination.
Concurrently with the execution of the Merger Agreement, Leafly, Merida, and the Sponsor entered into the Stock Escrow Amendment which provides that, following the Closing, after giving effect to the forfeiture of the Forfeited Shares, fifty percent of the remaining Sponsor Shares (the “Net Sponsor Shares”) were or will be released from escrow as follows: (a) fifty percent of the Net Sponsor Shares were released from escrow on the Closing Date due to the satisfaction of the Minimum Cash Condition, (b) twenty-five percent of the Net Sponsor Shares will be released from escrow upon the occurrence of the First Price Triggering Event, (c) all of the Sponsor Shares then held in escrow will be released from escrow upon the occurrence of the Second Price Triggering Event, and (d) if a Change of Control that will result in the holders of common stock receiving a per share price equal to or in excess of the applicable per share price required in connection with the First Price Triggering Event or the Second Price Triggering Event occurs at a time when Sponsor Shares are held in escrow, then immediately prior to the consummation of such Change of Control (i) the applicable triggering event that has not previously occurred shall be deemed to have occurred and (ii) the applicable Net Sponsor Shares will be released from escrow. On the business day following the end of the Second Earn-Out Period, all Sponsor Shares not released from escrow will be forfeited and canceled.
Administrative Support Agreement
Merida entered into an Administrative Services Agreement with Merida Manager III, LLC for $5,000 per month for office space, utilities and secretarial and administrative support from November 2019 (the “Administrative Agreement”). In October 2021, Merida ended the $5,000 Administrative Agreement and as a condition of closing the Business Combination, forfeited accrued administrative fees as of September 30, 2021 in the amount of $55,000. As the result of ending the Administrative Agreement, there was no outstanding balance as of December 31, 2021. The Administrative Agreement was solely for
130
Merida’s benefit and was not intended to provide Merida’s officers or directors compensation in lieu of a salary or other compensation. Other than the $5,000 per month administrative fee, the payment of consulting, success or finder fees to Merida Holdings, LLC (the “Sponsor”) and Merida’s officers, directors, the Merida initial stockholders or their affiliates in connection with the consummation of an initial business combination and the repayment of loans that may be made by the Sponsor to Merida, no compensation or fees of any kind, including finder’s, consulting fees and other similar fees, were paid to the Sponsor, the Merida initial stockholders, special advisors, members of Merida’s management team or their respective affiliates, for services rendered prior to or in connection with the consummation of Merida’s initial business combination.
Advances — Related Party
In anticipation of the underwriters’ election to fully exercise their over-allotment option, the Sponsor advanced Merida an additional $41,458 to cover the purchase of the additional Warrants. At December 31, 2021, advances of $16,458 were outstanding and due on demand. This amount was repaid in connection with the closing of the Business Combination and was no longer outstanding as of December 31, 2022.
Promissory Notes — Related Party
On August 6, 2019, Merida issued an unsecured promissory note to the Sponsor (the “Sponsor Promissory Note”), pursuant to which Merida borrowed an aggregate principal amount of $100,569 under the Sponsor Promissory Note, which was also the largest aggregate amount of principal outstanding under the Sponsor Promissory Note was non-interest bearing and payable on the earlier of (a) September 30, 2020, (b) the consummation of Merida’s initial public offering or (c) the date on which Merida determined not to proceed with the initial public offering. The $339 that remained outstanding under the Sponsor Promissory Note prior to the closing of the Business Combination was repaid in connection with the closing of the Business Combination and was no longer outstanding as of December 31, 2022.
On June 25, 2021, Merida issued an unsecured promissory note in the amount of $400,000 to the Sponsor (the “Promissory Note”), pursuant to which Merida borrowed an aggregate principal amount of $400,000 under the Promissory Note, which was also the largest aggregate amount of principal outstanding under the Promissory Note. The Promissory Note was non-interest bearing and payable prior to the consummation of a Business Combination. The $400,000 that remained outstanding under the Promissory Note prior to the closing of the Business Combination was repaid in connection with the closing of the Business Combination and was no longer outstanding as of December 31, 2022.
On October 13, 2021, Merida issued an unsecured promissory note in the amount of $400,000 to the Sponsor (the “Second Promissory Note”), pursuant to which Merida borrowed an aggregate principal amount of $400,000 under the Second Promissory Note, which was also the largest aggregate amount of principal outstanding under the Second Promissory Note. The Second Promissory Note was non-interest bearing and payable prior to the consummation of a Business Combination. The $400,000 that remained outstanding under the Second Promissory Note prior to the closing of the Business Combination was repaid in connection with the closing of the Business Combination and was no longer outstanding as of December 31, 2022.
Registration Rights
At the closing of the Business Combination, the Company entered into the Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”), with the registration rights holders. Pursuant to the terms of the Registration Rights Agreement, (a) any (i) outstanding share of common stock or any Private Warrants, and (ii) shares of common stock issued as Earn-Out Shares to shareholders of Legacy Leafly that received shares of common stock in the Business Combination or issuable as Earn-Out Shares pursuant to the Earn-Out Plan and (b) any other equity security of the Company issued or issuable with respect to any such share of common stock by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise, will be entitled to registration rights. Certain of the shareholders of Legacy Leafly that received shares of common stock in the Business Combination that are party to the Registration Rights Agreement, including Ms. Miyashita, our CEO, Michael Blue, our Board Chair, and Brendan Kennedy, and are related parties.
Pursuant to the terms of the Registration Rights Agreement, we previously filed registration statements, registering the resale of the registration rights holders’ shares, which has become effective. The Sponsor, EBC, and their transferees may demand not more than three demand registrations or shelf underwritten offerings in the aggregate and not more than two demand registrations in any twelve-month period, and the Leafly holders may demand not more than six demand registrations or shelf underwritten offerings in the aggregate and not more than two demand registrations in any twelve-month period, and the Company will not be obligated to participate in more than four demand registrations or shelf underwritten offerings, in any
131
twelve-month period. The Company has borne and will bear the expenses incurred in connection with the filing of any registration statements filed pursuant to the terms of the Registration Rights Agreement.
Privateer Holdings and Privateer Management
Leafly was a wholly owned subsidiary of Privateer Holdings until February 14, 2019, when Privateer Holdings effected a capital restructuring of Leafly and distributed its ownership in Leafly to its stockholders. In 2019, Leafly entered into a Corporate Services Agreement, as amended, with Privateer Management. Two individuals on Legacy Leafly’s board of directors, Michael Blue and Christian Groh, are officers of Privateer Management, which therefore has been identified as a related party. Privateer Management provided managerial services, support services, administrative services, at times paid for employee health benefit and other expenses on behalf of Leafly, and at times Leafly paid for employee health and benefit expenses on behalf of Privateer Holdings, through March 31, 2021. During the year ended December 31, 2021, Leafly did not record any expenses for these services within general and administrative expenses in its consolidated statements of operations. As of December 31, 2021, Leafly did not report any receivables for employee health and benefits paid on behalf of Privateer Holdings. As of December 31, 2021, Leafly did not owe any amounts to Privateer Management for corporate services and expenses paid on its behalf in 2020 and prior.
Other
One of Leafly's significant investors, Brendan Kennedy, is a member of the board of directors of Tilray Brand, Inc., which is the parent company of High Park Holdings Ltd., a customer of Leafly, and has therefore been identified as a related party. During the years ended December 31, 2022 and 2021, the Company recorded approximately $— and $142,000, respectively, of revenue earned from contracts with this customer (see Note 15 of Leafly’s audited consolidated financial statements).
In June 2021 the investor noted above purchased a convertible promissory note totaling $1,000,000, which bore interest at 8% annually. The note was issued as part of the existing series of 2021 Notes (see Note 11 of Leafly’s audited consolidated financial statements) and was subject to the same interest rate, maturity, and conversion terms. This note converted to shares of Leafly common stock in accordance with its terms upon closing of the Business Combination in February 2022, along with the other 2021 Notes, which was then exchanged for merger consideration in the Business Combination.
Director Independence
The rules of the Nasdaq Global Market (“Nasdaq”), require that a majority of the Company’s board of directors be independent. An “independent director” is generally defined under applicable Nasdaq rules as a person other than an officer or employee of the Company or its subsidiaries or any other individual having a relationship which in the opinion of the Board, would interfere with the director’s exercise of independent judgment in carrying out the responsibilities of a director. Each of the directors other than Yoko Miyashita and Michael Blue qualifies as an independent director, as defined under the listing rules of Nasdaq, and the board of directors of the Company consists of a majority of “independent directors,” as defined under the rules of the SEC and Nasdaq listing rules relating to director independence requirements.
Audit Committee members must also satisfy the independence criteria set forth in Rule 10A-3 under the Exchange Act, and the listing standards of Nasdaq. In addition, members of the Company’s Compensation Committee and Nominating and Corporate Governance Committee must satisfy the independence criteria set forth under the listing standards of Nasdaq. The Board has determined that each of Mr. Lee, Ms. Chandler, Mr. Judja-Sato and Mr. Pickerill is an “independent director” under applicable SEC and Nasdaq rules for purposes of serving on the Board and each committee on which they serve, as applicable. Mr. Blue, who is not an independent director under Nasdaq rules, is a member of our Nominating and Corporate Governance Committee. Although Nasdaq rules generally require a listed company to have a nominating committee composed entirely of independent directors, the Board has determined that Mr. Blue’s membership on the Nominating and Corporate Governance Committee satisfies the standards set out in Nasdaq Rule 5605(e)(3) for non-independent committee members and is in the best interest of the Company and its stockholders due to Mr. Blue’s significant experience with Leafly and the cannabis industry.
Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Fees Paid to Independent Registered Public Accounting Firm
Our Audit Committee appointed the firm of Marcum LLP (“Marcum”) as the Company's independent registered public accounting firm for our fiscal year ended December 31, 2022. Marcum has been our independent registered public accounting firm since 2019, and Marcum also served as the independent registered public accounting firm of Merida prior to the
132
consummation of the Business Combination. The following table presents fees for professional services rendered by Marcum to us for the years ended December 31, 2022 and 2021, respectively:
|
|
2022 |
|
|
2021 |
|
||
|
|
|
|
|
|
|
||
Audit Fees |
|
$ |
574,514 |
|
|
$ |
299,000 |
|
Audit related fees |
|
|
60,000 |
|
|
|
176,739 |
|
Total fees |
|
$ |
634,514 |
|
|
$ |
475,739 |
|
|
|
|
|
|
|
|
||
The audit related fees are related to work performed in connection with registration statements, such as due diligence procedure and issuance of comfort letters.
Audit Committee Pre-Approval Policies and Procedures
The Audit Committee maintains policies and procedures for the pre-approval of work performed by the independent auditors and, pursuant to the Audit Committee charter, all auditor engagements must be approved in advance by the Audit Committee. All fees for 2022 were pre-approved by Leafly’s Audit Committee pursuant to the Company’s prior approval procedures. For fiscal year 2021, because Legacy Leafly was not a public company and did not have an Audit Committee, the services provided to the Company by Marcum during fiscal year 2021 were approved by management.
133
PART IV
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULE
EXHIBIT INDEX
|
|
|
|
Incorporated by Reference |
||||||
Exhibit Number |
|
Exhibit Description |
|
Form |
|
Period Ending |
|
Exhibit |
|
Filing Date |
|
|
|
|
|
|
|
|
|
|
|
|
|
8-K |
|
2/4/22 |
|
2.1 |
|
2/10/22 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
8-K |
|
2/4/22 |
|
2.2 |
|
2/10/22 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
8-K |
|
2/4/22 |
|
2.3 |
|
2/10/22 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
10-K |
|
12/31/21 |
|
3.1 |
|
3/31/22 |
||
|
|
|
|
|
|
|
|
|
|
|
|
Amended and Restated Bylaws of Leafly Holdings, Inc., dated February 4, 2022. |
|
8-K |
|
2/4/22 |
|
3.2 |
|
2/10/22 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8-K |
|
2/4/22 |
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4.1 |
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2/10/22 |
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8-K |
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2/4/22 |
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4.2 |
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2/10/22 |
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8-K |
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2/4/22 |
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4.3 |
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2/10/22 |
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8-K |
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2/4/22 |
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4.4 |
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2/10/22 |
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Notation of Guarantee, dated February 4, 2022, by Leafly Holdings, Inc. |
|
8-K |
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2/4/22 |
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4.4 |
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2/10/22 |
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10-K |
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12/31/21 |
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4.6 |
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3/31/22 |
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8-K |
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2/4/22 |
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10.1 |
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2/10/22 |
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8-K |
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2/4/22 |
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10.2 |
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2/10/22 |
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134
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Incorporated by Reference |
||||||
Exhibit Number |
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Exhibit Description |
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Form |
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Period Ending |
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Exhibit |
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Filing Date |
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8-K |
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1/6/22 |
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10.1 |
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1/12/22 |
||
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+ |
|
S-4/A |
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12/9/21 |
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Annex E |
|
12/10/21 |
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+ |
|
10-K |
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12/31/21 |
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10.5 |
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3/31/22 |
||
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* |
Form of Stock Option Award Agreement, 2021 Equity Incentive Plan |
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* |
Form of Restricted Stock Unit Award Agreement, 2021 Equity Incentive Plan |
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+ |
Form of Performance Stock Unit Award Agreement, 2021 Equity Incentive Plan |
|
10-Q |
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9/30/22 |
|
10.1 |
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11/14/22 |
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+ |
|
10-K |
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12/31/21 |
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10.6 |
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3/31/22 |
||
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8-K |
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2/4/22 |
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10.7 |
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2/10/22 |
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+ |
Offer Letter from Leafly Holdings, Inc. to Suresh Krishnaswamy, dated September 13, 2021. |
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S-4 |
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12/9/21 |
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10.15 |
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12/9/21 |
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+ |
Offer Letter from Leafly Holdings, Inc. to Sam Martin, dated November 4, 2021. |
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S-4 |
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12/9/21 |
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10.16 |
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12/9/21 |
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+ |
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S-4 |
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12/9/21 |
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10.17 |
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12/9/21 |
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+ |
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S-4 |
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12/9/21 |
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10.18 |
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12/9/21 |
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S-4 |
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12/9/21 |
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10.3 |
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12/9/21 |
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S-4 |
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12/9/21 |
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10.4 |
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12/9/21 |
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+ |
|
10-K |
|
12/31/21 |
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10.22 |
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3/31/22 |
||
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+ |
Form of Stock Option Agreement, Leafly Holdings, Inc. 2018 Equity Incentive Plan |
|
10-K |
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12/31/21 |
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10.23 |
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3/31/22 |
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* |
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* |
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135
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Incorporated by Reference |
||||||
Exhibit Number |
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Exhibit Description |
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Form |
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Period Ending |
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Exhibit |
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Filing Date |
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* |
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* |
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* |
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8-K |
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2/4/22 |
|
21.1 |
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2/10/22 |
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* |
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* |
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* |
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* |
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|
101.INS |
*** |
Inline XBRL Instance Document |
|
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101.SCH |
**** |
Inline XBRL Taxonomy Extension Schema Document |
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|
101.CAL |
**** |
Inline XBRL Taxonomy Extension Calculation Linkbase Document |
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101.LAB |
**** |
Inline XBRL Taxonomy Extension Label Linkbase Document |
|
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101.PRE |
**** |
Inline XBRL Taxonomy Extension Presentation Linkbase Document |
|
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101.DEF |
**** |
Inline XBRL Taxonomy Extension Definition Linkbase Document |
|
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|
104 |
*** |
Cover Page Interactive Data File |
|
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* |
Filed herewith. |
*** |
The XBRL Instance Document and Cover Page Interactive Data File do not appear in the Interactive Data File because their XBRL tags are embedded within the Inline XBRL document. |
**** |
Submitted electronically herewith |
+ |
Management contract or compensation plan or arrangement. |
136
Item 16. FORM 10-K SUMMARY
None.
137
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on March 28, 2023.
|
Leafly Holdings, Inc. |
|
|
|
|
|
By: |
/s/ Yoko Miyashita |
|
|
Yoko Miyashita |
|
|
Chief Executive Officer |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated:
138
|
|
Principal Executive Officer |
|
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|
Date: |
March 28, 2023 |
By: |
/s/ Yoko Miyashita |
|
|
|
Yoko Miyashita |
|
|
|
Chief Executive Officer, Director |
|
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|
Principal Financial Officer |
|
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|
Date: |
March 28, 2023 |
By: |
/s/ Suresh Krishnaswamy |
|
|
|
Suresh Krishnaswamy |
|
|
|
Chief Financial Officer |
|
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Date: |
March 28, 2023 |
Directors |
|
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By: |
/s/ Michael Blue |
|
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Michael Blue |
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By: |
/s/ Yoko Miyashita |
|
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Yoko Miyashita |
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By: |
/s/ Alan Pickerill |
|
|
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Alan Pickerill |
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By: |
/s/ Cassandra Chandler |
|
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Cassandra Chandler |
|
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By: |
/s/ Blaise Judja-Sato |
|
|
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Blaise Judja-Sato |
|
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By: |
/s/ Peter Lee |
|
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|
Peter Lee |
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|
139
Form Employee Option Award Agreement
Leafly Holdings, Inc.
2021 Equity Incentive Plan
Stock Option Award Agreement
This Stock Option Award Agreement (this “Agreement”) is made by and between Leafly Holdings, Inc., a corporation organized and existing under the laws of Delaware (the “Company”) and [] (the “Participant”), effective as of __________, 2022 (the “Date of Grant”).
RECITALS
WHEREAS, the Company has adopted the Leafly Holdings, Inc. 2021 Equity Incentive Plan (as may be further amended, amended and restated or modified from time to time (the “Plan”)), which is incorporated herein by reference and made a part of this Agreement. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to those terms in the Plan.
NOW THEREFORE, in consideration of the premises and mutual covenants set forth in this Agreement, the parties agree as follows:
1
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
2
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
3
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
4
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
5
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
6
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
7
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
8
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
9
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
10
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
11
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee Option Award Agreement
[Signature page follows.]
12
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
IN WITNESS WHEREOF, the Company and the Participant have executed this Stock Option Agreement as of the dates set forth below.
PARTICIPANT LEAFLY HOLDINGS, INC.
By: By:
Name: Name:
Date: Date:
[Signature Page – Stock Option Award Agreement]
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477441\4\58167.0004" "" WEIL:\98477441\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874890.1
Form Employee RSU Award Agreement
Leafly Holdings, Inc.
2021 Equity Incentive Plan
Restricted Stock Unit Award Agreement
This Restricted Stock Unit Award Agreement (this “Agreement”) is made by and between Leafly Holdings, Inc., a corporation organized and existing under the laws of Delaware (the “Company”) and [●] (the “Participant”), effective as of __________, 2022 (the “Date of Grant”).
RECITALS
WHEREAS, the Company has adopted the Leafly Holdings, Inc. 2021 Equity Incentive Plan (as may be further amended, amended and restated or modified from time to time (the “Plan”), which is incorporated herein by reference and made a part of this Agreement. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to those terms in the Plan;
NOW THEREFORE, in consideration of the premises and mutual covenants set forth in this Agreement, the parties agree as follows:
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
2
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
3
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
4
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
5
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
6
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
7
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
8
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
9
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
10
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
[Signature page follows.]
11
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
IN WITNESS WHEREOF, the Company and the Participant have executed this Restricted Stock Unit Award Agreement as of the dates set forth below.
PARTICIPANT LEAFLY HOLDINGS, INC.
_________________________________ By: ______________________________
Date:_____________________________ Date: _____________________________
[Signature Page – RSU Award Agreement]
IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "WEIL:\98477713\4\58167.0004" "" WEIL:\98477713\4\58167.0004
DOCPROPERTY "CUS_DocIDChunk0" 157874926.2
EXHIBIT 10.23
Execution Version
AMENDMENT TO
FORWARD PURCHASE SHARE AGREEMENT
THIS AMENDMENT, dated as of May 3, 2022 (this “Amendment”), to that certain forward share purchase agreement (the “Forward Share Purchase Agreement”), dated as of December 22, 2021, by and among Merida Merger Corp. I, a Delaware corporation, renamed Leafly Holdings Inc. (the “Company”), and Tenor Opportunity Master Fund, Ltd. (the “Investor”). Capitalized terms used but not otherwise defined in this Amendment shall have the meaning ascribed thereto in the Forward Share Purchase Agreement.
WHEREAS, the Business Combination has been consummated and the Business Combination Closing Date has occurred;
WHEREAS, as of the date of this Amendment, the number of Shares subject to the Forward Share Purchase Agreement is 1,200,000 Shares;
WHEREAS, the Company and the Investor desire to amend the Forward Share Purchase Agreement to extend the term of the Forward Share Purchase Agreement and to make the other changes set forth in this Amendment.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein and in the Forward Share Purchase Agreement, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
(a) Forward Share Purchase. Subject to the conditions set forth in Section 4, on August 1, 2022 (the “Put Date”), the Investor may elect to sell and transfer to the Company, and the Company shall purchase from the Investor, the number of Shares that are then held by the Investor, but not to exceed 1,200,000 Shares in the aggregate unless otherwise agreed in writing by all Parties, at a price per Share equal to $10.31 per Share (the “Shares Purchase Price”). Each Investor shall, notify the Company and the Escrow Agent (as defined below) in writing five (5) Business Days (as defined below) or more prior to the Put Date whether or not the Investor is exercising such Investor’s right to sell any of the Shares held by such Investor to the Company pursuant to this Agreement (each, a “Shares Sale Notice”). Any Investor that fails to timely deliver a Shares Sales Notice in accordance with the immediately preceding sentence shall be deemed to have forfeited its right to sell any Shares to the Company pursuant to this Agreement.
EXHIBIT 10.23
EXHIBIT 10.23
(b) Shares Closing. If a Shares Sale Notice is timely delivered by any Investor to the Company and the Escrow Agent, the closing of the sale of the Shares contemplated in each such timely delivered Share Sales Notice (the “Shares Closing”) shall occur on the Put Date (the “Shares Closing Date”). On the Shares Closing Date, each selling Investor shall deliver, or make available for delivery by way of DWAC, the Shares subject to the applicable Shares Sale Notice free and clear of all liens and encumbrances to the Escrow Agent and, in exchange therefor, the Escrow Agent shall deliver to each such selling Investor(s) an amount equal to
(i) the Shares Purchase Price multiplied by (ii) the number of Shares being sold by such selling Investor (with respect to any particular selling Investor, the “Investor Shares Purchase Price”), which shall be paid by wire transfer of immediately available funds from the Escrow Account. The Escrow Agent shall, (i) without delay, release from the Escrow Account to the Investor on the Shares Closing Date, for the Investor’s use without restriction, an amount equal to the Investor Shares Purchase Price, and (ii) promptly deliver such sold Shares to the Company.
(c) Partial Distribution Option. Notwithstanding anything to the contrary in this Agreement, the Investor may, at its option, concurrently with the delivery of a Share Sales Notice or Put Notice, provide written notice to the Company and Escrow Agent (a “Partial Distribution Notice”) to instruct the Escrow Agent to (i) release
$10.01 per Share to the Investor rather than the full Shares Purchase Price and (ii) retain the remaining $0.30 per Share in escrow (the “Remaining Amount”). In the event a Partial Distribution Notice is provided by the Investor, on or prior to August 1, 2023, the Investor may instruct the Escrow Agent by written notice to disburse the Remaining Amount to the Investor. If the Investor does not provide written notice to the Escrow Agent by 5:00 p.m. Eastern Time on August 1, 2023 to cause the release of such amount to the Investor, the Escrow Agent shall disburse the Remaining Amount to the Company and the Investor shall forfeit its right to receive such Remaining Amount.
(f) Shareholdings. As of the date of May 3, 2022, the Investor holds 1,200,000 Shares.
[Intentionally deleted]
EXHIBIT 10.23
The Investor shall give written notice to the Company and the Escrow Agent of any open market sale pursuant to this Section 4(c) or any other disposition of the Shares, including pursuant to the delivery of Shares in connection with the exercise of any derivative transactions entered into by the Investor (which shall be treated as a sale for purposes of Section 3.1 of the Escrow Agreement), within three (3) Business Days following the date of such sale or other transfer (each, an “Open Market Sale Notice”), and each Open Market Sale Notice shall include the date of the sale or other transfer, the number of Shares sold or transferred, and confirmation that the sale price per Share was greater than $10.01 per share prior to the payment of any commissions due by the Investor for the sale.
5. Closing Conditions. The obligation of the Company to purchase the Shares at the Shares Closing under this Agreement shall be subject in all respects to the consummation of the Business Combination, such Shares being free and clear of all liens and other encumbrances as of the Shares Closing and such Shares being continuously held by the Investor from the closing of the Business Combination through the Put Date.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the date first written above.
COMPANY:
LEAFLY HOLDINGS INC., a Delaware
corporation
By: /s/ Suresh Krishnaswamy Name: Suresh Krishnaswamy
Title: Chief Financial Officer
[Signature Page to Amendment to Forward Share Purchase Agreement]
INVESTOR:
TENOR OPPORTUNITY MASTER FUND, LTD.
By: /s/ Daniel Kochav
[Signature Page to Amendment to Forward Share Purchase Agreement]
Name: Title:
[Signature Page to Amendment to Forward Share Purchase Agreement]
Daniel Kochav Director
[Signature Page to Amendment to Forward Share Purchase Agreement]
EXHIBIT 10.24
AMENDMENT TO
FORWARD PURCHASE SHARE AGREEMENT
THIS AMENDMENT, dated as of May 3, 2022 (this “Amendment”), to that certain forward share purchase agreement (the “Forward Share Purchase Agreement”), dated as of December 22, 2021, by and among (i) Merida Merger Corp. I, a Delaware corporation, renamed Leafly Holdings Inc. (the “Company”), (ii) Meteora Special Opportunity Fund I, LP, a Delaware limited partnership (“MSOF”), and (iii) Meteora Capital Partners, LP, a Delaware limited partnership (“MCP”) (with each of MCP and MSOF individually as an “Investor” and collectively, the “Investors”). Capitalized terms used but not otherwise defined in this Amendment shall have the meaning ascribed thereto in the Forward Share Purchase Agreement.
WHEREAS, the Business Combination has been consummated and the Business Combination Closing Date has occurred;
WHEREAS, as of the date of this Amendment, the number of Shares subject to the Forward Share Purchase Agreement is 686,161 Shares;
WHEREAS, the Company and the Investors desire to amend the Forward Share Purchase Agreement to extend the term of the Forward Share Purchase Agreement and to make the other changes set forth in this Amendment.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein and in the Forward Share Purchase Agreement, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
EXHIBIT 10.24
the immediately preceding sentence shall be deemed to have forfeited its right to sell any Shares to the Company pursuant to this Agreement.
(b) Shares Closing. If a Shares Sale Notice is timely delivered by any Investor to the Company and the Escrow Agent, the closing of the sale of the Shares contemplated in each such timely delivered Share Sales Notice (the “Shares Closing”) shall occur on the Put Date (the “Shares Closing Date”). On the Shares Closing Date, each selling Investor shall deliver, or make available for delivery by way of DWAC, the Shares subject to the applicable Shares Sale Notice free and clear of all liens and encumbrances to the Escrow Agent and, in exchange therefor, the Escrow Agent shall deliver to each such selling Investor(s) an amount equal to
(i) the Shares Purchase Price multiplied by (ii) the number of Shares being sold by such selling Investor (with respect to any particular selling Investor, the “Investor Shares Purchase Price”), which shall be paid by wire transfer of immediately available funds from the Escrow Account. The Escrow Agent shall promptly deliver such sold Shares to the Company.
(f) Shareholdings. As of the date of May 2, 2022 (the “Effective Date”), the Investors collectively hold 686,161 Shares, with the per Investor holding of Shares set forth on Appendix A hereto.
[Intentionally deleted]
EXHIBIT 10.24
2
EXHIBIT 10.24
market 599,439 Shares (the “Previously Sold Shares”). The Parties agree that the Investors shall have the right, but not the obligation, to sell any or all of the Shares in the open market if the sale price exceeds $10.01 per Share prior to payment of any commissions due by the Investors for such sale. Each Investor shall give written notice to the Company and the Escrow Agent of any open market sale or any other disposition of the Shares, including pursuant to the delivery of Shares in connection with the exercise of any derivative transactions entered into by such Investor (which shall be treated as a sale for purposes of Section 3.1 of the Escrow Agreement), made after the Effective Date, within three (3) Business Days following the date of such sale or other transfer (each, an “Open Market Sale Notice”), and each Open Market Sale Notice shall include the date of the sale or other transfer and the number of Shares sold or transferred.
(x) $10.16 multiplied by (y) 686,161 Shares, and to the extent that as of the Effective Date, the amount of the Escrowed Funds exceeds such amount, then within three (3) Business Days of the Effective Date, the Escrow Agent shall release to the Company for the Company’s use without restriction such excess amount. Furthermore, upon receipt by the Escrow Agent and the Company subsequent to the Effective Date of an Open Market Sale Notice as provided in Section 4(c), the Escrow Agent may release to the Company for the Company’s use without restriction an aggregate amount equal to
EXHIBIT 10.24
3
EXHIBIT 10.24
to timely deliver a Shares Sale Notice to the Company pursuant to Section 1(a) for all of its Shares, the Company may promptly issue instructions to the Escrow Agent to release from the Escrow Account to the Company for the Company’s use without restriction an amount equal to
(x) $10.16 multiplied by (y) the number of Shares held by such Investor.
5. Closing Conditions. The obligation of the Company to purchase the Shares at the Shares Closing under this Agreement shall be subject in all respects to the consummation of the Business Combination, such Shares being free and clear of all liens and other encumbrances as of the Shares Closing and such Shares being continuously held by the Investors from the closing of the Business Combination through the Put Date.
(ii) waives any objection to laying venue in any such action in the Chosen Courts, and (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto.
EXHIBIT 10.24
4
EXHIBIT 10.24
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the date first written above.
COMPANY:
LEAFLY HOLDINGS INC., a Delaware
corporation
By: /s/ Suresh Krishnaswamy Name: Suresh Krishnaswamy
Title: Chief Financial Officer
EXHIBIT 10.24
[Signature Page to Amendment to Forward Share Purchase Agreement]
MSOF:
Meteora Special Opportunity Fund I, LP
By: /s/ Vik Mittal
Name: Title:
MCP:
Vik Mittal
Managing Member
Meteora Capital Partners, LP
By: /s/ Vik Mittal
Name: Title:
Vik Mittal
Managing Member
Appendix A
Investor |
Number of Shares |
Meteora Special Opportunity Fund I, LP |
154,578 |
Meteora Capital Partners, LP |
531,583 |
EXHIBIT 10.25
Execution Version
AMENDMENT TO
FORWARD PURCHASE SHARE AGREEMENT
THIS AMENDMENT, dated as of May 3, 2022 (this “Amendment”), to that certain forward share purchase agreement (the “Forward Share Purchase Agreement”), dated as of January 10, 2022, by and among Merida Merger Corp. I, a Delaware corporation, renamed Leafly Holdings Inc. (the “Company”), and Linden Advisors LP on behalf of the accounts listed in Appendix A of the Forward Share Purchase Agreement (each an “Investor” and together the “Investors”). Capitalized terms used but not otherwise defined in this Amendment shall have the meaning ascribed thereto in the Forward Share Purchase Agreement.
WHEREAS, the Business Combination has been consummated and the Business Combination Closing Date has occurred;
WHEREAS, as of the date of this Amendment, the number of Shares subject to the Forward Share Purchase Agreement is 738,688 Shares;
WHEREAS, the Company and the Investors desire to amend the Forward Share Purchase Agreement to extend the term of the Forward Share Purchase Agreement and to make the other changes set forth in this Amendment.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein and in the Forward Share Purchase Agreement, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
EXHIBIT 10.25
EXHIBIT 10.25
(b) Shares Closing. If a Shares Sale Notice is timely delivered by any Investor to the Company, the closing of the sale of the Shares contemplated in each such timely delivered Share Sales Notice (the “Shares Closing”) shall occur on the Put Date (the “Shares Closing Date”). On the Shares Closing Date, each selling Investor shall deliver, or make available for delivery by way of DWAC, the Shares subject to the applicable Shares Sale Notice free and clear of all liens and encumbrances to the Escrow Agent (as defined below) and, in exchange therefor, the Escrow Agent shall deliver to each such selling Investor(s) an amount equal to (i) the Shares Purchase Price multiplied by (ii) the number of Shares being sold by such selling Investor (with respect to any particular selling Investor, the “Investor Shares Purchase Price”), which shall be paid by wire transfer of immediately available funds from the Escrow Account. The Escrow Agent shall promptly deliver such sold Shares to the Company.
(f) Shareholdings. As of the date of May 3, 2022, the Investors collectively hold 738,688 Shares, with the per Investor holding of Shares set forth on Appendix A hereto.
[Intentionally deleted]
Each Investor shall give written notice to the Company of any open market sale pursuant to this Section 4(c) or any other disposition of the Shares, including pursuant to the delivery of Shares in connection with the exercise of any derivative transactions entered into by such Investor (which shall be treated as a sale for
EXHIBIT 10.25
purposes of Section 3.1 of the Escrow Agreement), within five (5) Business Days following the last day of the calendar week during which such sale or other transfer
EXHIBIT 10.25
was completed (each, an “Open Market Sale Notice”), and each Open Market Sale Notice shall include the date of the sale or other transfer, the number of Shares sold or transferred, and confirmation that the sale price per Share was greater than
$10.01 per share prior to the payment of any commissions due by the Investor for the sale.
5. Closing Conditions. The obligation of the Company to purchase the Shares at the Shares Closing under this Agreement shall be subject in all respects to the consummation of the Business Combination, such Shares being free and clear of all liens and other encumbrances as of the Shares Closing and such Shares being continuously held by the Investors from the closing of the Business Combination through the Put Date.
EXHIBIT 10.25
EXHIBIT 10.25
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the date first written above.
COMPANY:
LEAFLY HOLDINGS INC., a Delaware
corporation
By: /s/ Suresh Krishnaswamy Name: Suresh Krishnaswamy
Title: Chief Financial Officer
EXHIBIT 10.25
[Signature Page to Amendment to Forward Share Purchase Agreement]
INVESTOR:
LINDEN ADVISORS LP on behalf of the Accounts listed on Appendix A of the Forward Share Purchase Agreement
By: /s/ Saul Ahn
Name: Title:
Saul Ahn
General Counsel /Authorized Signatory
[Signature Page to Amendment to Forward Share Purchase Agreement]
Appendix A
Investor |
Number of Shares |
Linden Capital L.P. |
694,908 |
Crown Managed Accounts SPC acting for and on behalf of Crown/Linden Segregated Portfolio |
16,000 |
PCH Manager Fund, SPC. Solely on behalf of and for the account of Segregated Portfolio 214 |
27,780 |
EXHIBIT 10.26
Execution Version
AMENDMENT TO
FORWARD PURCHASE SHARE AGREEMENT
THIS AMENDMENT, dated as of May 3, 2022 (this “Amendment”), to that certain forward share purchase agreement (the “Forward Share Purchase Agreement”), dated as of December 22, 2021, by and among Merida Merger Corp. I, a Delaware corporation, renamed Leafly Holdings Inc. (the “Company”), and Castle Creek Arbitrage, LLC on behalf of the accounts listed in Appendix A of the Forward Share Purchase Agreement (each an “Investor” and together the “Investors”). Capitalized terms used but not otherwise defined in this Amendment shall have the meaning ascribed thereto in the Forward Share Purchase Agreement.
WHEREAS, the Business Combination has been consummated and the Business Combination Closing Date has occurred;
WHEREAS, the Company and the Investors desire to amend the Forward Share Purchase Agreement to extend the term of the Forward Share Purchase Agreement and to make the other changes set forth in this Amendment.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein and in the Forward Share Purchase Agreement, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
(a) Forward Share Purchase. Subject to the conditions set forth in Section 4, on August 1, 2022 (the “Put Date”), each Investor may elect to sell and transfer to the Company, and the Company shall purchase from each such Investor, all or any portion of the number of Shares that are then held by each Investor, but not to exceed the amount of Shares with respect to each Investor set forth on Appendix A unless otherwise agreed in writing by all Parties, at a price per Share equal to $10.31 per Share (the “Shares Purchase Price”). Each Investor shall, notify the Company and the Escrow Agent (as defined below) in writing not later than 5:00 p.m. Eastern Time on July 25, 2022 whether or not such Investor is exercising such Investor’s right to sell any of the Shares held by such Investor to the Company pursuant to this Agreement (each, a “Shares Sale Notice”), and the Escrow Agent and the Company shall each promptly provide written confirmation of the receipt of such Shares Sale Notice. Any Investor that fails to timely deliver a Shares Sales Notice in accordance with the immediately preceding sentence shall be deemed to have forfeited its right to sell any Shares to the Company pursuant to this Agreement.
EXHIBIT 10.26
EXHIBIT 10.26
(b) Shares Closing. If a Shares Sale Notice is timely delivered by any Investor to the Company and the Escrow Agent, the closing of the sale of the Shares contemplated in each such timely delivered Share Sales Notice (the “Shares Closing”) shall occur on the Put Date (the “Shares Closing Date”). On the Shares Closing Date, each selling Investor shall deliver, or make available for delivery by way of DWAC, the Shares subject to the applicable Shares Sale Notice free and clear of all liens and encumbrances to the Escrow Agent and, in exchange therefor, the Escrow Agent shall deliver to each such selling Investor(s) an amount equal to
(i) the Shares Purchase Price multiplied by (ii) the number of Shares being sold by such selling Investor (with respect to any particular selling Investor, the “Investor Shares Purchase Price”), which shall be paid by wire transfer of immediately available funds from the Escrow Account. The Escrow Agent shall promptly deliver such sold Shares to the Company.
(f) Shareholdings. As of the date of May 2, 2022, the Investors collectively hold 465,289 Shares, with the per Investor holding of Shares set forth on Appendix A hereto.
[Intentionally deleted]
Each Investor shall give written notice to the Company and the Escrow Agent of any open market sale of Shares pursuant to this Section 4(c) or any other disposition of the Shares, including pursuant to the delivery of Shares in connection with the exercise of any derivative transactions entered into by such Investor (which shall be treated as a sale for purposes of Section 3.1 of the Escrow Agreement), within three (3) Business Days following the date of such sale or other transfer (each, an “Open Market Sale Notice”), and each Open Market Sale Notice shall include the date of the sale or other transfer, the number of Shares sold or transferred, and
EXHIBIT 10.26
confirmation that the sale price per Share was greater than $10.01 per Share prior to the payment of any commissions due by the Investor for the sale.
EXHIBIT 10.26
5. Closing Conditions. The obligation of the Company to purchase the Shares at the Shares Closing from an Investor under this Agreement shall be subject in all respects to such Shares being free and clear of all liens and other encumbrances as of the Shares Closing and such Shares being continuously held by such Investor from the closing of the Business Combination through the Put Date.
EXHIBIT 10.26
EXHIBIT 10.26
or, to the extent the Court of Chancery does not have subject matter jurisdiction, the United States District Court for the District of Delaware and the appellate courts having jurisdiction of appeals in such courts or, to the extent neither the Court of Chancery nor the Delaware Federal Court has subject matter jurisdiction, the Superior Court of the State of Delaware, and, solely with respect to any such action (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action in the Chosen Courts, and (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto.
EXHIBIT 10.26
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the date first written above.
COMPANY:
LEAFLY HOLDINGS INC., a Delaware
corporation
By: /s/ Suresh Krishnaswamy
Name: Suresh Krishnaswamy
Title: Chief Financial Officer
EXHIBIT 10.26
[Signature Page to Amendment to Forward Share Purchase Agreement]
INVESTOR:
CASTLE CREEK ARBITRAGE, LLC on behalf of
the Accounts listed on Appendix A of the Forward Share Purchase Agreement
By: /s/ Allan Weine
Name: Allan Weine
Title:
CIO
[Signature Page to Amendment to Forward Share Purchase Agreement]
Appendix A
Investor |
Number of Shares |
CC Arbitrage, Ltd. |
111,437 |
CC Arb West LLC |
353,852 |
Form RSU Award Agreement
2022 AIP Awards
Leafly Holdings, Inc.
2021 Equity Incentive Plan
Restricted Stock Unit Award Agreement
This Restricted Stock Unit Award Agreement (this “Agreement”) is made by and between Leafly Holdings, Inc., a corporation organized and existing under the laws of Delaware (the “Company”) and [●] (the “Participant”), effective as of __________, 2023 (the “Date of Grant”).
RECITALS
WHEREAS, the Company has adopted the Leafly Holdings, Inc. 2021 Equity Incentive Plan (as may be further amended, amended and restated or modified from time to time (the “Plan”), which is incorporated herein by reference and made a part of this Agreement. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to those terms in the Plan;
NOW THEREFORE, in consideration of the premises and mutual covenants set forth in this Agreement, the parties agree as follows:
2
3
4
5
6
7
8
9
10
[Signature page follows.]
11
IN WITNESS WHEREOF, the Company and the Participant have executed this Restricted Stock Unit Award Agreement as of the dates set forth below.
PARTICIPANT LEAFLY HOLDINGS, INC.
_________________________________ By: ______________________________
Date:_____________________________ Date: _____________________________
[Signature Page – RSU Award Agreement]
Exhibit 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation by reference in the Registration Statement of Leafly Holdings, Inc. on Form S-8 (File Nos. 333-269975, 333-266947, and 333-264333) of our report dated March 28, 2023, with respect to our audits of the consolidated financial statements of Leafly Holdings, Inc. as of December 31, 2022 and 2021 and for each of the two years in the period ended December 31, 2022, which report is included in this Annual Report on Form 10-K of Leafly Holdings, Inc. for the year ended December 31, 2022.
/s/ Marcum LLP
Marcum LLP
San Jose, CA
March 28, 2023
Exhibit 31.1
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Yoko Miyashita, certify that:
Date: March 28, 2023 |
|
By: |
/s/ Yoko Miyashita |
|
|
|
Yoko Miyashita |
|
|
|
Chief Executive Officer (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Suresh Krishnaswamy, certify that:
Date: March 28, 2023 |
|
By: |
/s/ Suresh Krishnaswamy |
|
|
|
Suresh Krishnaswamy |
|
|
|
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
Exhibit 32.1
CERTIFICATIONS PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Yoko Miyashita, the Chief Executive Officer of Leafly Holdings, Inc., certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report on Form 10-K of Leafly Holdings, Inc. for the year ended December 31, 2022, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K fairly presents, in all material respects, the financial condition and results of operations of Leafly Holdings, Inc.
Date: March 28, 2023 |
|
By: |
/s/ Yoko Miyashita |
|
|
|
Yoko Miyashita |
|
|
|
Chief Executive Officer (Principal Executive Officer) |
I, Suresh Krishnaswamy, the Chief Financial Officer of Leafly Holdings, Inc., certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report on Form 10-K of Leafly Holdings, Inc. for the year ended December 31, 2022, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K fairly presents, in all material respects, the financial condition and results of operations of Leafly Holdings, Inc.
Date: March 28, 2023 |
|
By: |
/s/ Suresh Krishnaswamy |
|
|
|
Suresh Krishnaswamy |
|
|
|
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
This certification accompanies the Annual Report on Form 10-K of Leafly Holdings, Inc. for the year ended December 31, 2022, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Leafly Holdings, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of such Annual Report on Form 10-K), irrespective of any general incorporation language contained in such filing.