UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
☒
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended November 30, 2021
OR
☐
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: 001-38594
TILRAY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
82-4310622
(State or other jurisdiction of
incorporation or organization)
(I.R.S. EmployerIdentification No.)
655 Madison Avenue, Suite 1900
New York, NY
10065
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including area code: (844) 845-7291
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange on which registered
Class 2 Common Stock, $0.0001 par value per share
TLRY
The Nasdaq Global Select Market
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 the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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
Accelerated filer
Non-accelerated filer
Smaller reporting company
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes ☒ No ☐
As of January 4, 2022, the registrant had 466,522,611 shares of common stock, $0.0001 par value per share, issued and outstanding.
Table of Contents
Page
PART I.
FINANCIAL INFORMATION
1
Item 1.
Financial Statements (Unaudited)
Consolidated Statements of Financial Position (Unaudited)
Consolidated Statements of Income (Loss) and Comprehensive Loss (Unaudited)
2
Consolidated Statements of Stockholders' Equity (Unaudited)
3
Consolidated Statements of Cash Flows (Unaudited)
4
Notes to Consolidated Financial Statements (Unaudited)
5
Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
23
Item 3.
Quantitative and Qualitative Disclosures About Market Risk
38
Item 4.
Controls and Procedures
PART II.
OTHER INFORMATION
40
Legal Proceedings
Item 1A.
Risk Factors
Unregistered Sales of Equity Securities and Use of Proceeds
42
Defaults Upon Senior Securities
Mine Safety Disclosures
Item 5.
Other Information
Item 6.
Exhibits
43
Signatures
44
i
Cautionary Note Regarding Forward-Looking Statements
This Quarterly Report on Form 10-Q for the quarter ended November 30, 2021 (the “Form 10-Q”) contains forward-looking statements within the meaning of safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Such statements involve risks, uncertainties and assumptions. If the risks or uncertainties ever materialize or the assumptions prove incorrect, our results may differ materially from those expressed or implied by such forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,”” might,” “plan,” “project,” “will,” “would” ”seek,” or “should,” or the negative or plural of these words or similar expressions or variations are intended to identify such forward-looking statements. Forward-looking statements include, among other things, our beliefs or expectations relating to our future performance, results of operations and financial condition; our strategic initiatives, business strategy, supply chain, brand portfolio and product performance; the COVID-19 pandemic; current or future macroeconomic trends; and future corporate acquisitions and strategic transactions.
Risks and uncertainties that may cause actual results to differ materially from forward-looking statements include: our ability to successfully complete the integration of the businesses of Tilray and Aphria; challenges and uncertainty resulting from the COVID-19 pandemic; the highly regulated environment in which we operate and our dependence on regulatory approvals and licenses; our ability to manage our supply chain effectively; disruption of operations at our cultivation and manufacturing facilities; challenges and uncertainty resulting from the impact of competition; our ability to manage risks associated with our international sales and operations; our ability to successfully develop and commercialize new products; our ability to execute our strategic plan and other initiatives, including our ability to achieve $4 billion of revenue by the end of our fiscal year 2024; our dependency on significant customers, which generate a significant amount of our revenue; input cost inflation; disruptions to information technology systems; pending and future litigation; volatility in our stock; our ability to raise funds; and other risks and matters described in our most recent Annual Report on Form 10-K, this Form 10-Q and our other filings from time to time with the U.S. Securities and Exchange Commission and in our Canadian securities filings.
Forward looking statements are based on information available to us as of the date of this Quarterly Report on Form 10-Q and, while we believe that information provides a reasonable basis for these statements, these statements are inherently uncertain, and investors are cautioned not to unduly rely on these statements. You should not rely upon forward-looking statements or forward-looking information as predictions of future events.
We undertake no obligation to update forward-looking statements to reflect actual results or changes in assumptions or circumstances, except as required by applicable law.
ii
PART I—FINANCIAL INFORMATION
Item 1. Financial Statements.
Consolidated Statements of Financial Position
(in thousands of United States dollars, unaudited)
November 30,
2021
May 31,
Assets
Current assets
Cash and cash equivalents
$
331,783
488,466
Accounts receivable, net
84,575
87,309
Inventory
233,020
256,429
Prepaids and other current assets
57,340
48,920
Convertible notes receivable
1,560
2,485
Total current assets
708,278
883,609
Capital assets
604,249
650,698
Right-of-use assets
13,933
18,267
Intangible assets
1,450,015
1,605,918
Goodwill
2,814,163
2,832,794
Interest in equity investees
4,440
8,106
Long-term investments
168,244
17,685
Other assets
164
8,285
Total assets
5,763,486
6,025,362
Liabilities
Current liabilities
Bank indebtedness
8,736
8,717
Accounts payable and accrued liabilities
168,300
212,813
Contingent consideration
62,339
60,657
Warrant liability
40,455
78,168
Current portion of lease liabilities
3,588
4,264
Current portion of long-term debt
31,510
36,622
Total current liabilities
314,928
401,241
Long - term liabilities
Lease liabilities
49,265
53,946
Long-term debt
151,819
167,486
Convertible debentures
554,854
667,624
Deferred tax liability
219,311
265,845
Other liabilities
320
3,907
Total liabilities
1,290,497
1,560,049
Commitments and contingencies (refer to Note 17)
Shareholders' equity
Common stock ($0.0001 par value; 990,000,000 shares authorized; 463,802,393 and 265,423,304 shares issued and outstanding, respectively)
46
Additional paid-in capital
4,954,547
4,792,406
Accumulated other comprehensive income
9,595
152,668
Accumulated Deficit
(527,900
)
(486,050
Total Tilray shareholders' equity
4,436,288
4,459,070
Non-controlling interests
36,701
6,243
Total shareholders' equity
4,472,989
4,465,313
Total liabilities and shareholders' equity
The accompanying notes are an integral part of these consolidated financial statements.
Consolidated Statements of Income (Loss) and Comprehensive Loss
(in thousands of United States dollars, except for share and per share data, unaudited)
Three months ended November 30,
Six months ended November 30,
2020
Net revenue
155,153
129,459
323,176
246,949
Cost of goods sold
122,387
94,176
239,455
176,721
Gross profit
32,766
35,283
83,721
70,228
Operating expenses:
General and administrative
33,469
28,273
82,956
54,245
Selling
9,210
6,079
16,642
11,896
Amortization
29,016
4,208
59,755
8,335
Marketing and promotion
7,120
4,252
12,585
9,177
Research and development
515
225
1,300
345
Transaction costs
8,120
18,206
33,699
20,664
Total operating expenses
87,450
61,243
206,937
104,662
Operating loss
(54,684
(25,960
(123,216
(34,434
Interest expense, net
(9,940
(4,832
(20,110
(10,568
Non-operating income (expense), net
64,750
(72,649
113,610
(86,008
Income (loss) before income taxes
126
(103,441
(29,716
(131,010
Income taxes (recovery)
(5,671
(14,192
(909
(20,017
Net income (loss)
5,797
(89,249
(28,807
(110,993
Total net income (loss) attributable to:
Shareholders of Tilray Inc.
(201
(99,900
(41,850
(134,243
5,998
10,651
13,043
23,250
Other comprehensive (loss) income, net of tax
Foreign currency translation (loss) gain
(32,367
(910
(133,139
475
Unrealized loss on convertible notes receivable
52
—
(597
Change in fair value of long-term investments
(16,357
Total other comprehensive (loss) income, net of tax
(48,672
(150,093
Comprehensive loss
(42,875
(90,159
(178,900
(110,518
Total comprehensive income (loss) attributable to:
(41,853
(100,810
(184,923
(133,768
(1,022
6,023
Weighted average number of common shares - basic
460,254,275
243,477,655
454,797,598
242,207,388
Weighted average number of common shares - diluted
Net income (loss) per share - basic
(0.00
(0.41
(0.09
(0.55
Net income (loss) per share - diluted
Consolidated Statements of Stockholders’ Equity
(in thousands of United States dollars, except for share data, unaudited)
Number of
common
shares
Common
stock
Additional
paid-in
capital
Accumulated
other
comprehensive
income (loss)
Non-
controlling
interests
Total
Balance at May 31, 2020
240,132,635
24
1,366,736
(5,434
(113,352
26,957
1,274,931
Share issuance - legal settlement
1,389,884
7,018
Share issuance - options exercised
41,065
Share issuance - RSUs exercised
429,280
2,246
Share-based payments
1,233
Comprehensive income (loss) for the period
1,385
(34,343
12,599
(20,359
Balance at August 31, 2020
241,992,864
1,377,237
(4,049
(147,695
39,556
1,265,073
503,974
3,436
Share issuance - equity financing
14,610,496
103,594
103,596
Share issuance - SweetWater acquisition
8,232,810
69,189
69,190
74,337
86
8,823
306
1,017
Balance at November 30, 2020
265,423,304
27
1,554,865
(4,959
(247,595
50,207
1,352,545
Balance at May 31, 2021
446,440,641
Third party contribution to Superhero Acquisition LP
52,995
417,489
2,756
3,665,337
6,661
Share-based payments, net
(5,944
(101,421
(41,649
7,045
(136,025
Balance at August 31, 2021
450,523,467
4,795,879
51,247
(527,699
66,283
4,385,756
Share issuance - Superhero Acquisition LP
9,817,061
117,804
Share issuance - DDH note
2,677,596
28,560
(28,560
98,044
1,939
470,324
6,314
215,901
4,051
(41,652
Balance at November 30, 2021
463,802,393
Consolidated Statements of Cash Flows
For the six months ended November 30,
Cash used in operating activities:
Net loss
Adjustments for:
Deferred income tax recovery
(11,228
(36,175
Unrealized foreign exchange (gain) loss
(6,530
6,648
76,804
23,010
Loss on sale of capital assets
230
Inventory valuation write down
12,000
Other non-cash items
3,739
(134
Stock-based compensation
17,670
8,339
Loss on long-term investments & equity investments
2,197
1,519
Loss (gain) on derivative instruments
(133,436
70,342
Loss on contingent consideration
1,682
Transaction costs associated with business acquisitions
13,897
Change in non-cash working capital:
Accounts receivable
2,734
(28,570
(6,299
(4,019
3,409
(18,352
(44,513
20,827
Net cash used in operating activities
(110,348
(53,662
Cash used in investing activities:
Investment in capital and intangible assets
(23,856
(29,863
Proceeds from disposal of capital and intangible assets
8,264
6,607
Promissory notes advances
(2,419
Repayment of notes receivable
4,032
Proceeds from disposal of long-term investments and equity investees
2,676
Net cash paid on business acquisitions
(275,603
Net cash used in investing activities
(15,592
(294,570
Cash (used in) provided by financing activities:
Share capital issued, net of cash issuance costs
102,559
Proceeds (payment) from warrants and options exercised
(3,927
90
Proceeds from long-term debt
1,881
Repayment of long-term debt
(20,779
(2,210
Repayment of lease liabilities
(3,360
(71
Increase in bank indebtedness
19
3,689
Net cash (used in) provided by financing activities
(28,047
105,938
Effect of foreign exchange on cash and cash equivalents
(2,696
29,853
Net decrease in cash and cash equivalents
(156,683
(212,441
Cash and cash equivalents, beginning of period
360,646
Cash and cash equivalents, end of period
148,205
Notes to Consolidated Financial Statements
Note 1. Description of business
Tilray, Inc., and its wholly owned subsidiaries (collectively “Tilray”, the “Company”, “we”, or “us”) is a leading global cannabis-lifestyle and consumer packaged goods company headquartered in New York, with operations in Canada, the United States, Europe, Australia, New Zealand and Latin America that is changing people’s lives for the better – one person at a time – by inspiring and empowering the worldwide community to live their very best life by providing them with products that meet the needs of their mind, body, and soul and invoke a sense of wellbeing. Tilray’s mission is to be the trusted partner for its patients and consumers by providing them with a cultivated experience and health and wellbeing through high-quality, differentiated brands and innovative products. A pioneer in cannabis research, cultivation and distribution, Tilray’s production platform supports over 20 brands in over 20 countries, including comprehensive cannabis offerings, hemp-based foods, and alcoholic beverages.
On April 30, 2021, Tilray acquired all of the issued and outstanding common shares of Aphria Inc. (“Aphria”), an international organization focused on building a global cannabis-lifestyle consumer packaged goods company in addition to its businesses in the marketing and manufacturing beverage alcohol products in the United States, and in the distribution of (non-Cannabis) pharmaceutical products in Germany and Argentina, pursuant to a plan of arrangement (the “Arrangement”) under the Business Corporations Act (Ontario).
Note 2. Basis of presentation and summary of significant accounting policies
The accompanying unaudited consolidated financial statements (the “financial statements”) reflect the accounts of the Company. The financial statements were prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”) and pursuant to the rules and regulations of the United States Securities and Exchange Commission (“SEC”) for interim financial information. The information included in this Form 10-Q should be read in conjunction with the audited consolidated financial statements included in the Company’s Annual Report on Form 10-K for the year ended May 31, 2021 (the “Annual Financial Statements”). These financial statements reflect all adjustments, which, in the opinion of management, are necessary for a fair presentation of the results for the interim periods presented. Interim results are not necessarily indicative of results for a full year. The Company’s balance sheet in these interim financial statements was derived from the audited Annual Financial Statements but does not contain all of the footnote disclosures from the Annual Financial Statements.
These consolidated financial statements have been prepared on the going concern basis which assumes that the Company will continue in operation for the foreseeable future and, accordingly, will be able to realize its assets and discharge its liabilities in the normal course of operations as they come due, under the historical cost convention except for certain financial instruments that are measured at fair value, as detailed in the Company’s accounting policies.
As a result of the April 30, 2021 business combination with Aphria, the reported results do not include the results of operations of Tilray and its subsidiaries on and prior to April 30, 2021, in accordance with the accounting treatment applicable to the Arrangement. Accordingly, comparisons between the Company's results for the three and six months ended November 30, 2021 and prior periods may not be meaningful.
Information about the accounting treatment of the Arrangement including details of the transaction, determination of the total fair value consideration, and allocation of the purchase price, are included in the Company's Annual Report for the year ended May 31, 2021 filed in Form 10-K with the U.S. Securities and Exchange Commission on July 28, 2021 (“Annual Report”).
The purchase price allocation for the Arrangement is open for adjustments and has been allocated based on estimated fair values of the assets acquired and liabilities assumed at the acquisition date. In the event that more information is obtained, the purchase price allocation may change. Any future adjustments to the purchase price allocation, including changes within identifiable intangible assets or estimation uncertainty impacted by market conditions, may impact future net earnings. The purchase price allocation adjustments can be made through the end of the measurement period, which is not to exceed one year from the acquisition date.
Basis of consolidation
Subsidiaries are entities controlled by the Company. Control exists when the Company either has a controlling voting interest or is the primary beneficiary of a variable interest entity. The financial statements of subsidiaries are included in the consolidated financial statements from the date that control commences until the date that control ceases. A complete list of our subsidiaries that existed prior to our most recent year end is included in the Company's Annual Report for the year ended May 31, 2021 filed in Form 10-K with the U.S. Securities and Exchange Commission on July 28, 2021 (“Annual Report”).
On August 13, 2021, the Company and other unrelated persons formed Superhero Acquisition L.P., a Delaware limited partnership (“SH Acquisition”), for the purpose of acquiring certain senior secured convertible notes in the principal amount of approximately $165.8 million (the “MM Notes”) originally issued by MedMen Enterprises Inc. (“MedMen”) together with certain associated warrants (the “MM Warrants”) to acquire Class B subordinate voting shares of Medmen (the “MedMen Shares”) from certain funds affiliated with Gotham Green Partners (the “MM Transaction”). The MM Notes mature on August 17, 2028. On August 17, 2021, SH Acquisition completed the MM Transaction and issued 9,817,061 shares of its common stock as partial consideration for the MM Transaction. The balance of the consideration for the MM Transaction was paid in cash by the other unrelated investors of SH Acquisition.
In connection with its issuance of 9,817,061 shares of its common stock, the Company’s received an interest in SH Acquisition equal to approximately 68% of the interests in SH Acquisition and, therefore, indirectly acquired a right to 68% of the MM Notes and related MM Warrants, which were convertible into approximately 21% of the MedMen Shares outstanding (if such MM Notes and MM Warrants were converted and exercised upon closing the MM Transaction). In addition, interest on the principal amount of the MM Notes shall accrue at an interest rate of LIBOR plus 6%, with a LIBOR floor of 2.5% and, any accrued interest shall be pay-in-kind at a price equal to the trailing 30-day volume weighted average price of the MedMen Shares, as and when such pay-in-kind interest becomes due and payable. SH Acquisition was also granted “top-up” rights enabling it (and its limited partners) to maintain its percentage ownership (on an “as-converted” basis) in the event that MedMen issues equity securities upon conversion of convertible securities that may be issued by MedMen. Tilray’s ability to convert the Notes and exercise the Warrants is dependent upon U.S. federal legalization of cannabis (a “Triggering Event”) or Tilray’s waiver of such requirement as well as any additional regulatory approvals.
Under the SH Acquisition partnership agreement, certain material events described therein require the approval of the Company, and, upon a Triggering Event, the Company has the ability to appoint two of the three members of the board of directors of the general partner of SH Acquisition. As a result, we consolidated SH Acquisition as a subsidiary of Tilray beginning on August 17, 2021. Additional information about the MM Transaction is included in Note 7 Long-term investments.
Debt securities are classified as available-for-sale and are recorded at fair value and are subject to impairment testing. Other than impairment losses, unrealized gains and losses during the period, net of the related tax effect, are excluded from income and reflected in other comprehensive income (loss), and the cumulative effect is reported as a separate component of shareholders’ equity until realized. Upon sale, realized gain and losses are reported in net income. Debt securities are impaired when a decline in fair value is determined to be other-than-temporary. If the cost of an investment exceeds its fair value, the Company evaluates, among other factors, general market conditions, credit quality of debt instrument issuers, and the duration and extent to which the fair value is less than cost. Once a decline in fair value is determined to be other-than-temporary, an impairment charge is recorded in the statements of net loss and a new cost basis for the investment is established. The Company also evaluates whether there is a plan to sell the security or it is more likely than not that the Company will be required to sell the security before recovery. If neither of the conditions exist, then only the portion of the impairment loss attributable to credit loss is recorded in the statements of net loss and the remaining amount is recorded in other comprehensive income (loss).
Investments in equity securities of entities over which the Company does not have a controlling financial interest or significant influence are accounted for at fair value. Equity investments without readily determinable fair values are measured at cost with adjustments for observable changes in price or impairments (referred to as the “measurement alternative”). In applying the measurement alternative, the Company performs a qualitative assessment on a quarterly basis and recognizes an impairment if there are sufficient indicators that the fair value of the equity investments are less than carrying values. Changes in value are recorded in the statement of net loss and comprehensive loss, within the line, “Non-operating income (expense)”.
Investments in entities over which the Company does not have a controlling financial interest but has significant influence, are accounted for using the equity method, with the Company’s share of earnings or losses reported in earnings or losses from equity method investments on the statements of net loss and comprehensive loss. Equity method investments are recorded at cost, plus the Company’s share of undistributed earnings or losses, and impairment, if any, within “Interest in equity investees” on the balance sheets. The Company assesses investments in equity method investments when events or circumstances indicate that the carrying amount of the investment may be impaired. If it is determined that the current fair value of an equity method investment is less than the carrying value of the investment, the Company will assess if the shortfall is other than temporary (OTTI). Evidence of a loss in value might include, but would not necessarily be limited to, absence of an ability to recover the carrying amount of the investment or inability of the equity investee to sustain an earnings capacity that would justify the carrying amount of the investment. Once a determination is made that an OTTI exists, the investment is written down to its fair value in accordance with ASC 820 at the reporting date, which establishes a new cost basis.
6
New accounting pronouncements not yet adopted
In August 2020, the FASB issued ASU 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity (“ASU 2020-06”), which amends and simplifies existing guidance in an effort to reduce the complexity of accounting for convertible instruments and to provide financial statement users with more meaningful information. ASU 2020-06 is effective for the Company beginning June 1, 2022. This update may be applied retrospectively or on a modified retrospective basis with the cumulative effect recognized as an adjustment to the opening balance of retained earnings on the date of adoption. The Company is currently evaluating the effect of adopting this ASU.
In May 2021, the FASB issued ASU 2021-04, Modifications and Extinguishments (Subtopic 470-50), Compensation—Stock Compensation (Topic 718), and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40) (“ASU 2021-04”), which amends existing guidance for earnings per share (EPS) in accordance with Topic 260. ASU 2021-04 is effective for the Company beginning June 1, 2022. This update should be applied prospectively on or after the effective date of the amendments. The Company is currently evaluating the effect of adopting this ASU.
In October 2021, the FASB issued ASU 2021-08, Business Combinations (Subtopic 805), Accounting for Contract Assets and Contract Liabilities from Contracts with Customers (“ASU 2021-08”), which is intended to improve the accounting for acquired revenue contracts with customers in a business combination by addressing diversity in practice and inconsistency. ASU 2021-08 is effective for the Company beginning June 1, 2023. This update should be applied prospectively on or after the effective date of the amendments. The Company is currently evaluating the effect of adopting this ASU.
New accounting pronouncements recently adopted
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740) – Simplifying the Accounting for Income Taxes (“ASU 2019-12”), which is intended to simplify various aspects related to accounting for income taxes. ASU 2019-12 removes certain exceptions to the general principles in Topic 740 and also clarifies and amends existing guidance to improve consistent application. The standard is effective for annual reporting periods beginning after December 15, 2020 and including interim periods within those fiscal years. The Company adopted the ASU beginning June 1, 2021 and the adoption of ASU 2019-12 did not have a material impact on our consolidated financial statements.
In January 2020, the FASB issued ASU 2020-01, Investments – Equity Securities (Topic 321), Investments - Equity Method and Joint Ventures (Topic 323), and Derivatives and Hedging (Topic 815) (“ASU 2020-01”), which is intended to clarify the interaction of the accounting for equity securities under Topic 321 and investments accounted for under the equity method of accounting in Topic 323 and the accounting for certain forward contracts and purchased options accounted for under Topic 815. The Company adopted the ASU beginning June 1, 2021 and the adoption of ASU 2020-01 did not have a material impact on our consolidated financial statements.
Note 3. Inventory
Inventory consisted of the following:
Plants
19,935
23,083
Dried cannabis
115,970
118,269
Cannabis trim
3,725
2,931
Cannabis derivatives
28,215
24,158
Cannabis vapes
3,193
3,791
Packaging and other inventory items
22,768
31,462
Wellness inventory
12,412
15,171
Beverage alcohol inventory
4,792
5,402
Distribution inventory
22,010
32,162
During the three and six months ended November 30, 2021, the Company recorded $12,000 and $12,000 in our cannabis segment of charges related to inventory write downs as a component of cost of goods sold (November 30, 2020-$0 and $0).
7
Note 4. Capital assets
Capital assets consisted of the following:
November 30, 2021
May 31, 2021
Land
26,779
28,549
Production facility
411,611
346,510
Equipment
236,239
215,408
Leasehold improvement
7,444
17,059
ROU-assets under finance lease
34,798
34,726
Construction in progress
14,949
85,322
731,820
727,574
Less: accumulated amortization
(127,571
(76,876
Note 5. Intangible Assets
Intangible assets consisted of the following items:
Intellectual
Customer
property,
relationships
Licenses,
trademarks,
& distribution
permits &
compete
know how
intangible
channel
applications
agreements
& brands
assets
Cost
At May 31, 2021
239,810
414,930
12,453
990,917
1,658,110
Additions
182
856
1,038
Effect of foreign exchange
(9,300
(17,346
(659
(51,738
(79,043
At August 31, 2021
230,510
397,766
11,794
940,035
1,580,105
26
97
123
(6,240
(11,776
(10,099
(28,115
At November 30, 2021
224,270
386,016
930,033
1,552,113
Accumulated amortization
18,302
1,167
4,299
28,424
52,192
9,466
116
833
14,684
25,099
27,768
1,283
5,132
43,108
77,291
10,904
122
1,188
12,593
24,807
38,672
1,405
6,320
55,701
102,098
Net book value at May 31, 2021
221,508
0
413,763
8,154
962,493
Net book value at August 31, 2021
202,742
396,483
6,662
896,927
1,502,814
Net book value at November 30, 2021
185,598
384,611
5,474
874,332
As of November 30, 2021, included in Licenses, permits & applications is $383,445 of indefinite-lived intangible assets (May 31, 2021 - $412,000).
Expected future amortization expense for intangible assets as of November 30, 2021 are as follows:
2022 (remaining six months)
35,746
2023
63,770
2024
57,094
2025
56,091
2026
Thereafter
797,778
1,066,570
8
Note 6. Goodwill
The following table shows the carrying amount of goodwill:
Segment
Broken Coast Cannabis Ltd.
Cannabis business
105,963
Nuuvera Corp.
273,606
LATAM Holdings Inc.
63,239
CC Pharma GmbH
Distribution business
4,458
SweetWater
Beverage alcohol business
100,202
Tilray-provisional
2,155,471
2,144,143
Wellness business
77,470
33,754
63,713
Pursuant to the Arrangement, as described in Note 1, the Company is within the measurement period of the business acquisition. As of November 30, 2021, the fair values of assets and liabilities acquired have been prepared on a provisional basis and are subject to further adjustments as the Company completes its analysis. The Company will finalize the amounts recognized by April 30, 2022. The fair value adjustments made during the three and six months ended November 30, 2021 are not significant and are reflected in the table below:
375,673
28,054
68,547
76,547
2,960
8,960
136,637
Right-of-use assets, operating leases
12,606
Definite-lived intangible assets (estimated useful life)
Distribution channel (15 years)
404,000
Customer relationships (15 years)
59,000
Know how (5 years)
115,000
Brands (10 to 25 years)
301,000
Indefinite-lived intangible assets
Licenses
200,000
Goodwill-provisional
2,232,941
2,221,613
22,879
3,959,297
3,961,969
Accounts payable
62,292
Accrued expenses and other current liabilities
85,120
Accrued lease obligations
21,962
79,402
233,719
236,391
Convertible notes
267,862
4,034
754,391
757,063
Net assets acquired
3,204,906
9
Note 7. Long term investments
Long term investments consisted of the following:
Debt securities classified under available-for-sale method
154,442
Equity investments measured at fair value level 1
5,918
9,251
Equity investments measured at fair value level 2
2,384
2,934
Equity investments under measurement alternative
5,500
Total investments in debt and equity securities
As of November 30, 2021, the Company’s debt securities under available-for-sale method include the MM Notes, described in Note 2 Basis of presentation and summary of significant accounting policies. Interest on the principal amount of the MM Notes shall accrue at an interest rate of LIBOR plus 6%, with a LIBOR floor of 2.5% and, any accrued interest shall be pay-in-kind at a price equal to the trailing 30-day volume weighted average price of the MedMen Shares, as and when such pay-in-kind interest becomes due and payable. The MM Notes, which mature in 2028, are indirectly held by the Company through its majority-owned subsidiary, SH Acquisition. The Company has the ability, in its sole discretion, to transfer its partnership interest in SH Acquisition and/or the pro rata portion of the MM Notes and the corresponding portion of accrued and unpaid pay-in-kind interest, and/or cause the redemption of the partnership interest and/or the pro rata portion of the MM Notes held by the minority interest in SH Acquisition at any time. The total unrealized loss of $16,357 in accumulated other comprehensive income at November 30, 2021 relates to the long-term available-for-sale debt securities. The Company’s allowance for credit losses on debt securities classified as available-for-sale is $0 at November 30, 2021 and no related credit loss expenses were recorded during the three and six months ended November 30, 2021. Comparisons are not provided for the comparable prior year periods given the MM Transaction did not close until August 17, 2021.
The Company values debt securities under available-for-sale method using the Black-Scholes model (Level 3) with the following weighted-average assumptions:
Expected term
0.4 to 6.7 years
Expected volatility
70
%
Effective interest rate
20.4
Expected dividend yield
0.0
Probability of conversion
0% to 60%
Strike price
$0.15 to $4.29
Fair value of common stock
0.22
The Company’s equity investments at fair value consist of publicly traded shares and warrants held by the Company, including certain warrants acquired with the MM Notes and exercisable for equity securities of MedMen’s Class B subordinate voting shares. The Company’s equity investment under measurement alternative includes equity investments without readily determinable fair values.
Unrealized gains and losses recognized in non-operating income (expense) during the three and six months ended November 30, 2021 on equity investments still held at November 30, 2021 are a loss of $1,806 and a loss of $3,883 (2020 – loss of $399 and loss of $1,326). There were no impairments or adjustments to equity investments under the measurement alternative for the three and six months ended November 30, 2021 and November 30, 2020.
Note 8. Accounts payable and accrued liabilities
Accounts payable and accrued liabilities are comprised of:
Trade payables
64,980
57,706
Accrued liabilities
62,915
112,594
Accrued payroll and employment related taxes
18,403
19,390
Income taxes payable
14,957
14,764
Accrued interest
6,764
148
Other accruals
281
8,211
10
Note 9. Bank indebtedness
The Company has an operating line of credit in the amount of C$1,000 which bears interest at the lender’s prime rate plus 75 basis points. As of November 30, 2021, the Company has not drawn on the line of credit. The operating line of credit is secured by a security interest on that certain real property at 265 Talbot St. West, Leamington, Ontario.
CC Pharma GmbH, a subsidiary of the Company, has three operating lines of credit for €8,000, €3,500, and €500 each, which bear interest at Euro Over Night Index Average plus 1.79% and Euro Interbank Offered Rate plus 3.682% respectively. As of November 30, 2021, a total of €7,353 ($8,264) was drawn down from the available credit of €12,000. The operating lines of credit are secured by a security interest in on the inventory held by CC Pharma GmbH.
Four Twenty Corporation (“420”), a subsidiary of the Company, has a revolving credit facility of $20,000 which bears interest at EURIBOR plus an applicable margin. As of November 30, 2021, the Company has not drawn any amount on the revolving line of credit. The revolving credit facility is secured by all of 420 and SweetWater’s assets and includes a corporate guarantee by a subsidiary of the Company.
11
Note 10. Long-term debt
The following table sets forth the net carrying amount of long-term debt instruments:
Credit facility - C$80,000 - Canadian prime interest rate plus an applicable margin,
3-year term, with a 10-year amortization, repayable in blended monthly payments,
due in November 2022
56,160
62,964
Term loan - C$25,000 - Canadian 5-year bond interest rate plus 2.73% with a minimum
4.50%, 5-year term, with a 15-year amortization, repayable in blended monthly
payments, due in July 2023
13,015
14,335
Term loan - C$25,000 - 3.95%, compounded monthly, 5-year term with a 15-year
amortization, repayable in equal monthly instalments of $188 including interest,
due in April 2022
15,446
17,117
Term loan - C$1,250 - 3.85%, 5-year term, with a 10-year amortization, repayable in
equal monthly instalments of $13 including interest, due in August 2026
505
587
Mortgage payable - C$3,750 - 3.85%, 5-year term, with a 20-year amortization,
repayable in equal monthly instalments of $23 including interest, due in August 2026
2,354
2,562
Vendor take-back mortgage - C$2,850 - 6.75%, 5-year term, repayable in equal
monthly instalments of $56 including interest, due in June 2021
92
Term loan ‐ €5,000 ‐ Euro Interbank Offered Rate plus 1.79%, 5‐year term, repayable in
quarterly instalments of €250 plus interest, due in December 2023
2,543
3,356
Term loan ‐ €5,000 ‐ Euro Interbank Offered Rate plus 2.68%, 5‐year term, repayable
in quarterly instalments of €250 plus interest, due in December 2023
Term loan ‐ €1,500 ‐ Euro Interbank Offered Rate plus 2.00%, 5‐year term, repayable in
quarterly instalments of €98 including interest, due in April 2025
1,491
1,831
quarterly instalments of €98 including interest, due in June 2025
1,589
Term loan - $100,000 - EUROBIR rate plus an applicable margin, 3-year term, repayable
in quarterly instalments beginning March 31, 2021 of $7,500 in its first twelve months
and $10,000 in each of the next two years, due in March 2024
89,375
98,138
Carrying amount of long-term debt
185,021
206,169
Unamortized financing fees
(1,692
(2,061
Net carrying amount
183,329
204,108
Less principal portion included in current liabilities
(31,510
(36,622
Total noncurrent portion of long-term debt
As of November 30, 2021, the Company was in compliance with all the long-term debt covenants.
Note 11. Convertible debentures
The following table sets forth the net carrying amount of the convertible debentures:
5.25% Convertible Notes ("APHA 24")
284,724
399,444
5.00% Convertible Notes ("TLRY 23")
270,130
268,180
12
APHA 24
5.25% Contractual debenture
350,000
Debt settlement
(90,760
Fair value adjustment
25,484
140,204
Net carrying amount of APHA 24
Holders of the APHA 24 may convert all or any portion of their Notes, in multiples of $1 principal amount, at their option at any time between December 1, 2023 to the maturity date. The initial conversion rate for the APHA 24 will be 89.31162364 shares of common stock, par value $0.0001 per share, of Tilray, Inc. per $1,000 principal amount of Notes, which will be settled in cash, common shares of Aphria or a combination thereof, at Tilray’s election. This is equivalent to an initial conversion price of approximately $11.20 per common share, subject to adjustments in certain events. In addition, holders of the APHA 24 may convert all or any portion of their Notes, in multiples of $1 principal amount, at their option at any time preceding December 1, 2023, if:
(a)
the last reported sales price of the common shares for at least 20 trading days during a period of 30 consecutive trading days immediately preceding fiscal quarter is greater than or equal to 130% of the conversion price on each applicable trading day;
(b)
during the five-business day period after any five consecutive trading day period (the “measurement period”) in which the trading price per $1 principal amount of the APHA 24 for each trading day of the measurement period is less than 98% of the product of the last reported sale price of the Company’s common shares and the conversion rate on each such trading day;
(c)
the Company calls any or all of the APHA 24 for redemption or;
(d)
upon occurrence of specified corporate event.
The Company may not redeem the APHA 24 prior to June 6, 2022, except upon the occurrence of certain changes in tax laws. On or after June 6, 2022, the Company may redeem for cash all or part of the Notes, at its option, if the last reported sale price of the Company’s common shares has been at least 130% of the conversion price then in effect for at least 20 trading days during any 30 consecutive trading day period ending on and including trading day immediately preceding the date on which the Company provides notice of redemption. The redemption of the APHA 24 will be equal to 100% of the principal amount plus accrued and unpaid interest to, but excluding, the redemption date.
The Company estimated the fair value of the APHA 24 convertible debenture at November 30, 2021 at $1,098 per convertible debenture using the Black-Scholes model (Level 3) with the following weighted-average assumptions:
Risk-free interest rate
1.43
2.5 years
Expected volatility is based on the historical volatility of the Company's common stock.
TLRY 23
5.00% Contractual debenture
277,856
Unamortized discount
(7,726
(9,676
Net carrying amount of TLRY 23
13
Upon conversion, the Company will pay or deliver, as the case may be, cash, shares of our common stock or a combination of cash and shares of the Company’s common stock, at the Company’s election (the “cash conversion option”). The initial conversion rate for the convertible notes is 5.9735 shares of common stock per one thousand dollar principal amount of notes, which is equivalent to an initial conversion price of approximately $167.41 per share of common stock, which represents approximately 1,659,737 shares of common stock, based on the $277,856 aggregate principal amount of convertible notes outstanding as of May 31, 2021 (2020 - $nil). Throughout the term of the TLRY 23, the conversion rate may be adjusted upon the occurrence of certain events.
Prior to the close of business on the business day immediately preceding April 1, 2023, the TLRY 23 will be convertible only under the specified circumstances. On or after April 1, 2023 until the close of business on the business day immediately preceding the maturity date, holders may convert all or any portion of their TLRY 23, in multiples of $1 principal amount, at the option of the holder regardless of the aforementioned circumstances.
Note 12. Warrant liability
Warrants outstanding at November 30, 2021:
Balance
Classification
Exercise Price
Issued
Exercised/Expired
Expiration date – September 26, 2021
Equity
3.08
166,000
(166,000
Expiration date – January 30, 2022
9.08
5,828,651
Expiration date – March 17, 2025
Liability
5.95
6,209,000
12,203,651
12,037,651
November 30, 2020
Weighted
average
warrants
price
Outstanding, opening
7.41
5,994,651
8.91
Exercised during the period
Issued during the period
Cancelled during the period
Expired during the period
Outstanding, ending
7.47
The Company estimated the fair value of the Warrant liability at November 30, 2021 at $6.51 per warrant using the Black-Scholes pricing model (Level 3) with the following weighted-average assumptions:
1.40
3.80 years
10.12
14
Note 13. Stock-based compensation
The Company operates stock-based compensation plans as disclosed in our Annual Report. For the three and six months ended November 30, 2021, the total stock-based compensation was $8,253 and $17,670 (2020 - $5,489 and $8,339).
During the three and six months ended November 30, 2021, the Company did not grant any further stock options or RSUs out of Aphria’s predecessor plan. The Company's total stock-based compensation expense recognized is as follows:
For the three months ended November 30,
Stock options
879
4,695
2,250
RSUs
4,610
12,975
6,089
8,253
5,489
For the three and six months ended November 30, 2021, the Company granted 69,508 and 1,414,666 performance-based RSUs, with none vesting in the period (2020 – none and none). During the three and six months ended November 30, 2021, the Company accelerated the vesting of none and 679,000 RSUs to fully vested (2020 – none and none)
Note 14. Accumulated other comprehensive income (loss)
Accumulated other comprehensive loss includes the following components:
Foreign
currency
translation
gain (loss)
Unrealized
loss on
convertible
notes
receivables
loss on available-for-sale
debt securities
Less non-controlling interests
Balance May 31, 2021
156,417
(3,749
Other comprehensive loss
(100,772
(649
Balance August 31, 2021
55,645
(4,398
7,020
Balance November 30, 2021
23,278
(4,346
Note 15. Non-controlling interests
The following tables summarize the information relating to the Company’s subsidiaries, Superhero LP, CC Pharma Nordic ApS, Aphria Diamond, and ColCanna S.A.S. before intercompany eliminations. During the three and six months ended November 30, 2021, the Company made contributions to Superhero LP of $0 and $117,804 in the form of Tilray Class 2 common shares, the Company paid dividends of C$70,000 and C$70,000 (USD$56,630) to the shareholders of Aphria Diamond (“DDH note”), with the portion allocated to the non-controlling partner settled via issuance of Tilray Class 2 common shares. There were no other contributions or distributions during the period.
Non-controlling interests as of November 30, 2021:
Superhero
CC Pharma
Aphria
ColCanna
LP
Nordic ApS
Diamond
S.A.S.
629
82,882
359
83,870
Non-current assets
134
156,004
141,952
452,532
(709
(133,360
(6,639
(140,708
Non-current liabilities
(410
(62,853
(16
(63,279
Net assets
(356
42,673
135,656
332,415
15
Non-controlling interests as of May 31, 2021:
919
19,531
315
20,765
103
153,696
146,587
300,386
(956
(28,511
(62
(29,529
(406
(69,332
(6,606
(76,344
(340
75,384
140,234
215,278
Non-controlling interests for the six months ended November 30, 2021:
Revenue
136
53,101
53,237
Total expenses
178
26,367
458
27,003
Net (loss) income
(42
26,734
(458
26,234
Other comprehensive (loss) income
(2,817
(4,120
(23,268
Net comprehensive income
23,917
(4,578
2,966
Non-controlling interest %
32
25
49
NA
Net comprehensive (loss) income
(5,234
(4
11,719
Non-controlling interests for the six months ended November 30, 2020:
368
79,515
79,883
703
31,791
500
32,994
(335
47,724
(500
46,889
(85
23,385
(50
Note 16. Income Taxes
The determination of the Company’s overall effective tax rate requires significant judgment, the use of estimates, and the interpretation and application of complex tax laws. The effective tax rate reflects the income earned and taxed in various United States federal, state, and foreign jurisdictions. Tax law changes, increases and decreases in temporary and permanent differences between book and tax items, valuation allowances against the deferred tax assets, stock-based compensation, and the Company’s change in income in each jurisdiction all affect the overall effective tax rate. It is the Company’s practice to recognize interest and penalties related to uncertain tax positions in income tax expense.
The Company reported income tax benefit of $(5,671) and $(909) for the three and six months ended November 30, 2021 and income tax benefit of $(14,192) and $(20,017) for the three and six months ended November 30, 2020. The income tax expense (benefit) in the current period varies from the US statutory income tax rate and prior period primarily due to the geographical mix of earnings and losses with no tax benefit resulting from valuation allowances in certain jurisdictions.
16
Note 17. Commitments and contingencies
Purchase and other commitments
The Company has payments on long-term debt (refer to Note 10 Long-term debt), convertible notes (refer to Note 11 Convertible Debentures), material purchase commitments and construction commitments as follows:
2022
(remaining
six
months)
Long-term debt repayment
34,201
75,242
72,045
1,602
990
941
Convertible notes, principal and
interest
599,090
13,756
27,512
298,422
259,400
Material purchase obligations
28,951
12,024
14,741
1,101
407
254
424
Construction commitments
3,534
816,596
63,515
117,495
371,568
261,409
1,244
1,365
Effective November 10, 2021, the Company entered into a termination and settlement agreement with ABG Intermediate Holdings 2, LLC (“ABG”) and certain of its affiliates. Pursuant to this settlement agreement, the Company terminated $6,600 in remaining guaranteed royalty payments owed to ABG in exchange for the payment of $3,925 as a termination fee. The termination fee was comprised of a $1,500 cash payment plus the issuance of 215,901 Class 2 common shares.
The following table presents the future undiscounted payment associated with lease liabilities as of November 30, 2021:
Operating
Finance
leases
2,071
1,114
3,845
7,026
3,236
2,061
2,681
2,122
2,898
2,186
7,242
39,586
Total minimum lease payments
21,973
54,095
Imputed interest
(4,240
(18,975
Obligations recognized
17,733
35,120
Legal proceedings
The Company is and may be a defendant in lawsuits from time to time in the normal course of business. While the results of litigation and claims cannot be predicted with certainty, the Company believes the reasonably possible losses of such matters, individually and in the aggregate, are not material. Additionally, the Company believes the probable final outcome of such matters will not have a material adverse effect on the Company’s consolidated results of operations, financial position, cash flows or liquidity.
17
Note 18. Net revenue
The Company reports its net revenue in four reporting segments: cannabis, distribution, beverage alcohol and wellness, in accordance with ASC 280 Segment Reporting. The Company generates revenues from these segments through contracts and purchase orders with customers, each with a single performance obligation, being the sale of products.
Net revenue is comprised of:
Cannabis revenue
73,429
70,155
163,362
137,275
Cannabis excise taxes
(14,654
(15,389
(34,138
(31,307
Net cannabis revenue
58,775
54,766
129,224
105,968
Beverage alcohol revenue
14,544
754
31,027
Beverage alcohol excise taxes
(837
(44
(1,859
Net beverage alcohol revenue
13,707
710
29,168
Distribution revenue
68,869
73,983
136,055
140,271
Wellness revenue
13,802
28,729
Note 19. Cost of goods sold
Cost of goods sold is comprised of:
Cannabis costs
45,259
29,632
85,450
55,407
Beverage alcohol costs
5,921
12,583
Distribution costs
61,237
64,263
120,527
121,033
Wellness costs
9,970
20,895
Note 20. General and administrative expenses
General and administrative expenses are comprised of:
Executive compensation
2,237
2,711
5,327
4,961
Office and general
5,206
4,418
17,973
8,839
Salaries and wages
8,149
8,821
23,460
18,164
Insurance
4,995
2,904
9,626
6,110
Professional fees
3,355
3,171
6,068
6,106
Travel and accommodation
982
525
1,774
1,252
Rent
292
234
1,058
474
18
Note 21. Non-operating income (expense)
Non-operating income (expense) is comprised of:
Change in fair value of convertible debenture
56,353
(70,683
95,723
(70,343
Change in fair value of warrant liability
20,178
37,713
Foreign exchange loss
(10,180
(3,371
(15,904
(19,702
Loss on long-term investments
(1,833
(399
(3,508
(1,519
Gain from equity investees
1,356
Other non-operating (losses) gains, net
232
1,804
(1,770
5,556
Note 22.
Fair value measurements
Financial instruments
The Company has classified its financial instruments as described in Note 3 Significant accounting policies in our Annual Report.
The carrying values of accounts receivable, bank indebtedness and accounts payable and accrued liabilities approximate their fair values due to their short periods to maturity.
At November 30, 2021 the Company’s long-term debt of $18,305 (May 31, 2021 - $20,358) is subject to fixed interest rates. The Company’s long-term debt is valued based on discounting the future cash outflows associated with the long-term debt. The discount rate is based on the incremental premium above market rates for Government of Canada securities of similar duration. In each period thereafter, the incremental premium is held constant while the Government of Canada security is based on the then current market value to derive the discount rate.
The following tables present information about the Company’s assets and liabilities that are measured at fair value on a recurring basis as of November 30, 2021 and May 31, 2021 and indicates the fair value hierarchy of the valuation techniques the Company utilized to determine such fair value:
Level 1
Level 2
Level 3
Financial assets
Equity investments measured at fair value
8,302
Financial liabilities
APHA 24 Convertible debenture
Total recurring fair value measurements
337,701
3,944
541,960
883,605
12,185
497,717
5,419
538,269
1,041,405
The Company’s financial assets and liabilities required to be measured on a recurring basis are its equity investments measured at fair value, debt securities classified as available-for-sale, acquisition-related contingent consideration, and warrant liability.
Convertible notes receivable, and equity investments recorded at fair value. The estimated fair value is determined using quoted market prices, broker or dealer quotations or discounted cash flows and is classified as Level 2. Certain equity investments recorded at fair value have quoted prices in active markets for identical assets and are classified as Level 1.
Debt securities classified as available-for sale are recorded at fair value. The estimated fair value is determined using the Black-Scholes option pricing model and is classified as Level 3. The Company classified these securities as level 2 in the period of acquisition, when the valuation was determined to reflect the recent market transaction.
The warrants associated with the warrant liability are classified as Level 3 derivatives. Consequently, the estimated fair value of the warrant liability is determined using the Black-Scholes pricing model. Until the warrants are exercised, expire, or other facts and circumstances lead the warrant liability to be reclassified to stockholders’ equity, the warrant liability (which relates to warrants to purchase shares of common stock) is marked-to-market each reporting period with the change in fair value recorded in change in fair value of warrant liability. Any significant adjustments to the unobservable inputs disclosed in the table below would have a direct impact on the fair value of the warrant liability.
The contingent consideration from the acquisition of SweetWater, first due in December 2023 and payable in cash, is determined by discounting future expected cash outflows at a discount rate of 5%. The inputs into the future expected cash outflows are classified as Level 3.
The APHA 24 Convertible debentures are recorded at fair value. The estimated fair value is determined using the Black-Scholes option pricing model and is classified as Level 3.
The balances of assets and liabilities categorized within Level 3 of the fair value hierarchy measured at fair value on a recurring basis are reconciled, as follows:
Debt
Convertible
Warrant
Contingent
Securities
Consideration
AFS
Balance, May 31, 2021
(399,444
(78,168
(60,657
(538,269
170,799
Disposals
Unrealized gain (loss) on fair value
114,720
(1,682
134,394
Balance, November 30, 2021
(284,724
(40,455
(62,339
(233,076
20
The unrealized gain (loss) on fair value for the convertible debenture, the warrant liability, contingent consideration, and debt securities classified under available-for-sale method is recognized in non-operating income (loss) using the following inputs:
Financial asset / financial liability
Valuation
technique
Significant
unobservable
input
Inputs
APHA Convertible debentures
Black-Scholes
Volatility,
expected life
70%
3.8 years
Discounted
cash flows
Discount rate,
achievement
5%
100%
Interest rate,
conversion
20%
Items measured at fair value on a non-recurring basis
The Company's prepaids and other current assets, long lived assets, including property and equipment, goodwill and intangible assets are measured at fair value when there is an indicator of impairment and are recorded at fair value only when an impairment charge is recognized.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable. There have been no changes to the Company’s capital management approach in the period. The Company considers its cash and cash equivalents and marketable securities as capital.
Note 23.
Segment reporting
The Company operates in four reporting segments. 1) cannabis operations, which encompasses the production, distribution and sale of both medical and adult-use cannabis, 2) beverage alcohol operations, which encompasses the production, marketing and sale of beverage alcohol products, 3) distribution operations, which encompasses the purchase and resale of pharmaceuticals products to customers, and 4) wellness products, which encompasses hemp foods and cannabidiol (“CBD”) products. This structure is in line with how our Chief Operating Decision Maker (“CODM”) assesses our performance and allocates resources.
Operating segments have not been aggregated and no asset information is provided for the segments because the Company’s CODM does not receive asset information by segment on a regular basis. While the Company reported “business under development” as a fifth segment in its previous Annual Report, management determined that this no longer met the definition of a reporting segment.
Segment net revenue from external customers:
Segment gross profit from external customers:
For the three months ended
For the six months ended
13,516
25,134
43,774
50,561
7,632
9,720
15,528
19,238
7,786
429
16,585
3,832
7,834
21
Channels of Cannabis revenue were as follows:
Revenue from Canadian medical cannabis products
7,929
6,260
16,303
12,640
Revenue from Canadian adult-use cannabis products
49,535
58,175
119,128
115,123
Revenue from wholesale cannabis products
2,259
1,440
3,959
5,232
Revenue from international cannabis products
13,706
4,280
23,972
Less excise taxes
Geographic net revenue:
North America
72,443
54,475
162,986
105,667
EMEA
74,916
73,714
150,925
138,791
Rest of World
7,794
1,270
9,265
2,491
Geographic capital assets:
467,646
504,575
132,666
140,838
3,937
5,285
Major customers are defined as customers that each individually account for greater than 10% of the Company’s annual revenues. For the three and six months ended November 30, 2021 and 2020, there were no major customers representing greater than 10% of our annual revenues.
Note 24.
Subsequent Events
On December 1, 2021, the Company acquired all the membership interests in Cheese Grits, LLC, a Georgia limited liability company that owns the SweetWater Brewing Company brewery and taproom in Atlanta, Georgia (the “SW Acquisition”), which facility was previously leased to the Company. As consideration for the SW Acquisition, the Company paid a purchase price at closing equal to $30,665, which purchase price was satisfied through the assumption of outstanding debt as well as the issuance of 843,687 shares of Tilray’s Class 2 common stock with a fair value of $8,741. On December 17, 2021, the Company issued an additional 82,224 Class 2 common shares with a fair value at issuance of $776 to satisfy its contractual obligations under the SW Acquisition.
On December 7, 2021, the Company acquired all the membership interests in of Double Diamond Distillery LLC (d/b/a Breckenridge Distillery), a Colorado limited liability company and a leading distilled spirits brand located in Breckenridge, Colorado, widely known for its award-winning bourbon whiskey collection and innovative craft spirits portfolio (the “Breckenridge Acquisition”). As consideration for the Breckenridge Acquisition, the Company paid a purchase price in an aggregate amount equal to $102,900, which purchase price was satisfied through the issuance of 11,245,511 shares of Tilray’s Class 2 common shares.
On December 7, 2021, the Company entered into the Second Amendment to Credit Agreement (the “Amendment”) with the Bank of Montreal (as amended, the “Credit Agreement”). The Amendment reduced our total outstanding long-term debt under the Credit Agreement to $79,375 and increased our current line of credit to $30,000. On December 7, 2021, the Company drew $10,000 borrowed on the line of credit.
On December 17, 2021, the Company acquired certain assets from WC IPA LLC, consisting of certain intellectual property, inventory and other assets relating to the Alpine and Green Flash brands (the “Alpine Acquisition”). As consideration for the Alpine Acquisition, the Company paid a purchase price in an aggregate amount equal to $5,133, which purchase price was satisfied through the payment of cash and the issuance of 366,308 shares of Tilray’s Class 2 common shares with a fair value of $3,000.
22
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
This Management’s Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with the Consolidated Financial Statements and the related Notes thereto for the period ended November 30, 2021 contained in this Quarterly Report on Form 10-Q and our Annual Report on Form 10-K for the fiscal year ended May 31, 2021. Forward looking statements in this Form 10-Q are qualified by the cautionary statement included in this Form 10-Q under the sub-heading “Cautionary Note Regarding Forward-Looking Statements” in the introduction of this Form 10-Q.
Company Overview
We are a leading global cannabis-lifestyle and consumer packaged goods company headquartered in New York, New York with the largest global geographic footprint in the industry; including operations in Canada, the United States, Europe, Australia, New Zealand and Latin America that is changing people’s lives for the better – one person at a time – by inspiring and empowering the worldwide community to live their very best life by providing them with products that meet the needs of their mind, body, and soul and invoke a sense of wellbeing. Tilray’s mission is to be the trusted partner for its patients and consumers by providing them with a cultivated experience and health and wellbeing through high-quality, differentiated brands and innovative products.
In the pursuit of our strategic vision and mission, we continue to leverage our scale, expertise and capabilities to drive brand awareness and market share in Canada, Europe, the United States and the rest of world, achieve industry-leading, profitable growth and build sustainable, long-term stockholder value. In order to ensure the long-term sustainable growth of our Company, we continue to focus on developing strong capabilities, including in consumer and patient insights, drive category management leadership and assess growth opportunities with the introduction of innovative new products and the entry into new markets. In addition, we are relentlessly focused on managing our cost of goods and expenses in order to maintain our strong financial position and expand our profit margins.
On April 30, 2021, upon consummation of the arrangement with Aphria Inc. (“Aphria”) pursuant to a plan of arrangement under the Business Corporations Act (Ontario) (the “Arrangement”), Aphria stockholders and Tilray stockholders owned approximately 61.2% and 38.8%, respectively, of the post-closing outstanding Tilray common stock resulting in the reverse acquisition of Tilray, whereby Tilray is the legal acquirer and Aphria is the acquirer for accounting purposes. Accordingly, as reported in our Annual Report and in this Form 10-Q, the assets and liabilities of Aphria are presented at their historical carrying values and the assets and liabilities of Tilray are recognized on the effective date of the business combination transaction and measured at fair value. The operating results for the comparable period, the three and six months ended November 30, 2020, are of those of Aphria. In conjunction with the reverse acquisition, the Company elected to adopt Aphria’s fiscal year of June 1 to May 31.
Prior to the completion of the Arrangement, our condensed consolidated financial statements were presented under International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board and in Canadian Dollars (C$). All prior periods have been recast and are shown in this Form 10-Q under GAAP and in United States Dollars ($).
Trends and Other Factors Affecting Our Business
Market Dynamics.
Our cannabis business reporting segment operates in an industry that is still in its early stages of development. In Canada, the industry celebrated its third year of adult-use legalization in October 2021. As the industry continues to mature, there are a number of new entrants into the industry, which has led to increased competition. This competitive environment in the Canadian cannabis industry subjects us to the risk of loss of market share, price discounting by competitors, and to the challenge of acquiring new customers amidst the evolving market changes. The number of licenses granted, and the number of licensed producers ultimately authorized by Health Canada could have an adverse impact on our ability to compete for market share in Canada. During the three months ended November 30, 2021, we maintained our market leadership within Canada but experienced a decline in market share percent to 12.8% from the 15.7% market share we maintained at May 31, 2021. Prior to the end of our fiscal second quarter, the Company was primarily focused on margin maintenance in Canada. With the current market dynamics and the Company’s cost advantages, the Company adjusted its focus to be more price competitive in the value, mainstream and premium plus market categories, particularly, in vape and pre-rolled products. Management continues to explore key partnerships and acquisitions as a strategy to maintain and expand our market share position.
The cannabis industry in Europe is also in its early stages of development whereby countries within Europe are at different stages of legalization of medical and adult-use cannabis as some countries have expressed a clear political ambition to broadly legalize adult-use cannabis (Germany, Portugal, Luxembourg and Malta), some are engaging in an experiment for adult-use (Netherlands, Switzerland) and some are debating regulations for cannabinoid-based medicine (France, Spain, Italy, and the United Kingdom). In Europe, we believe that, despite continuing COVID-19 pressure, cannabis legalization (both medicinal and adult-use) will continue to gain traction, especially following actions of the Maltese and German governments. We also continue to believe that Tilray remains uniquely positioned to win in these markets with its infrastructure being the only company with EU-GMP cultivation facilities in two countries within Europe and our demonstrated commitment to the consistency, quality and safety of our products. Today, Germany remains the largest medical cannabis market in Europe. We are the market leader in medical cannabis within Germany with a market share of approximately 19.7% with our dried flower, extracts and Dronabinol products.
The following is a summary of the state of cannabis legalization within Europe:
Germany. The new coalition government led by chancellor Olaf Schulz declared its intention to legalize adult-use cannabis use, which aims to regulate the sale of adult-use cannabis.
Malta. In December 2021, Malta now allows its citizens to grow up to six plants at home, possess up to seven grams for personal use, establish a dedicated government authority, and allows the creation of social cannabis clubs. Although commercial sales are still forbidden, such achievement marks an important cornerstone for the cannabis industry in Europe.
Luxemburg. The government stated intentions to legalize adult-use cannabis in October 2021, thereby allowing cultivation, possession, and sale of seeds. However, legislation delays are due to the COVID-19 pandemic. The Luxemburg government has refined its draft bill, which we believe will be enacted in calendar year 2022.
Italy. Cannabis activists successfully set up a referendum to decriminalize domestic cannabis cultivation and remove penalties for cannabis possession through the amendment of several articles of narcotics law, which may come to a vote in calendar year 2022.
Portugal. There are currently two draft bills to allow for the consumption, cultivation, and possession of cannabis for adult use.
Switzerland. In October 2021, Switzerland announced its intention to legalize cannabis by allowing production, cultivation, trade, and consumption. In the meantime, Zurich, Switzerland's largest city, will be the location of a three-year pilot project starting in the Fall 2022 to conduct scientific studies on the cannabis market and its impact on Swiss society.
The Netherlands. The Dutch government aims to initiate an experiment involving the cultivation of cannabis for adult use to determine whether and how regulated cannabis can be legally supplied to coffee shops and what the resulting effects.
Spain. A subcommittee on cannabis was recently created and will commence its work in early February 2022 on a report leading the way for a government sponsored bill on medical cannabis.
France. France launched a two-year pilot experiment to supply approximately 3,000 patients with medical cannabis. To date, approximately 1,000 patients are enrolled in the experiment.
United Kingdom. Medical cannabis is legal in the United Kingdom, however, there is a need to maximize both clinical research and patient benefit in a safe, cautious and ethical manner so that those patients for whom medical cannabis is shown to be effective can access it. Currently, a new piece of legislation is in discussion, which aims to improve access to cannabinoid-based medicine through two measures: (1) expanding the ability to prescribe these products to General Practitioners (GPs) who are registered with the General Medical Council and (2) establishing a commission for the assessment of cannabinoid-based medicinal products.
Acquisitions and synergies.
We have grown, and expect to continue to grow, our business through a combination of organic growth and acquisition. While we continue to execute against our strategic initiatives that we believe will result in long-term, sustainable growth, we also evaluate potential acquisitions and other strategic transactions of businesses that we believe complement our existing businesses or provide us with the opportunity to enter attractive new geographic markets and/or expand our products portfolio and capabilities. We incur transaction costs in connection with identifying and completing acquisitions as well as ongoing integration costs as we integrate acquired companies and seek to achieve synergies. For the six months ended November 30, 2021, we incurred $33.7 million of transaction costs.
In connection with the Arrangement, we committed to achieving at least $80 million of synergies in connection with the integration of Tilray and Aphria and developed a robust plan and timeline to achieve such synergies. In connection with the development of our integration plan, we evaluated and optimized the organizational structure, evaluated and retained the talent and capabilities we identified as necessary to achieve our longer-term growth plan and vision, evaluated contracts and arrangements, and evaluated our supply chain and our strategic partnerships. During the six months ended November 30, 2021, we have executed on a series of synergistic actions which included:
•
We entered into a termination and settlement agreement with ABG Intermediate Holdings 2, LLC (“ABG”) and certain of its affiliates whereby we terminated the license to use certain trademarks and the obligation to pay associated royalties. Pursuant to this settlement agreement, we terminated $6.6 million in remaining guaranteed royalty payments owed to ABG in exchange for the payment of a $3.9 million termination fee.
We concluded our joint venture relationship with AB InBev whereby we retained the manufacturing equipment associated with CBD and THC beverages, obtained a royalty-free, perpetual, worldwide license to utilize the technology related to the manufacture of CBD and THC beverages, which was developed by the joint venture and negotiated a co-manufacturing arrangement to manufacture CBD beverages on behalf of Fluent.
We continued efforts to close down the legacy-Tilray Canadian facilities in Nanaimo and Enniskillen and integrate their forecasted demand into our Leamington facilities, thereby aligning our cost structure across our brands and products in Canada.
As of the date of this filing, we have achieved $70 million in cost-savings on a run-rate basis and $36 million in actual cash-savings.
During the six months ended November 30, 2021, we also executed on other strategic transactions, which completed after the end of our fiscal quarter ended November 30, 2021 but before the filing of this Form 10-Q, as follows (Refer to Part I, Financial Information, Note 24 Subsequent Events):
The acquisition of Breckenridge Distillery, a leading distilled spirits brand located in Breckenridge, Colorado, widely known for its award-winning bourbon whiskey collection and innovative craft spirits portfolio. Breckenridge Distillery joins SweetWater Brewing Company as the cornerstones of Tilray’s beverage alcohol segment and further diversifies the company’s net revenue mix. In addition to acquiring a strong brand and accretive business, this strategic acquisition delivers additional scale in the beverage alcohol category and further positions Tilray with additional infrastructure and a larger footprint in the U.S. market upon federal cannabis legalization. When federally permissible, Tilray believes the acquisition of Breckenridge Distillery will enable us to commercialize new and innovative products through the development of non-alcoholic distilled spirits, including bourbon whisky, that is infused with cannabis.
The purchase of the previously leased SweetWater Brewing facility and taproom located in Atlanta, Georgia, which provides SweetWater with ownership of its state-of-the-art brewing facility and integrated restaurant and live music venue.
Building upon SweetWaters’s strategic plan to expand into all 50 states within the U.S., we acquired the Alpine and Green Flash brands, two iconic West Coast craft beer brands that boast award-winning brews. This strategic acquisition was completed shortly after SweetWater announced plans to move into a 32,450-square-foot production facility in Fort Collins, Co that it recently acquired, which also includes a 10,000-square-foot taproom. We believe that these initiatives, coupled with SweetWater’s new taproom inside Denver International Airport, will provide a launch pad for SweetWater to further distribute to the West Coast.
The Coronavirus ("COVID-19") Pandemic, Its Impact on Us
We continuously address the effects of the COVID-19 pandemic, a discussion of which is available in sections entitled "Risk Factors" in Item 1A of Part I and “The Coronavirus ("COVID-19") Pandemic, Its Impact on Us” in Item 7 of our Annual Report on Form 10-K for the fiscal year ended May 31, 2021.
During the three and six months ended November 30, 2021, our business operations experienced the following as result of the COVID-19 pandemic:
Our Canadian adult-use cannabis business continued to experience the effect of the changes in consumer demand that were established during the onset of COVID-19 pandemic and periods of lockdown. As we have previously reported, consumers shifted their demand behavior to purchasing elections based primarily on pricing. This consumer model of purchasing eroded the sales of our higher quality, higher priced brands resulting in our market share reduction during the period. Our Canadian medical cannabis business experienced a slight uptick in patient demand. Our international cannabis business continued to experience delays from regulatory authorities overseeing access to medical cannabis in several European jurisdictions. In accessible markets, the access to physician practices remains limited due to protective measures in place throughout Germany, slowing down the adoption of cannabis as an innovative treatment option. Our distribution business experienced slight improvement in the global supply chain disrupted by the COVID-19 pandemic resulting in a modest increase in net revenue in its base currency but due to the weakening of the US dollar against the Euro resulted in a decrease in sales from the prior year’s comparable period. Our beer and alcohol business continues to see a decline in on-premise business primarily as the on-premise industry dealt with a lack of staffing and a change demand pattern related to after work alcohol consumption. The continued impact of the COVID-19 pandemic has hampered revenue growth in our main consumer facing markets. Within the hemp food segment of our business, we continue to navigate the changes with growth in ecommerce and “click + pickup” channels offsetting declines in traditional retailer channels as consumer shopping behaviors shift.
Our business and operating results for the three and six months ended November 30, 2021 continue to be impacted by the COVID-19 pandemic, including Delta and Omicron variants. The COVID-19 pandemic remains highly volatile, and the responses of local governments based on numbers of new cases, disease severity, risk of reinfection, and vaccine performance continue are unpredictable. We cannot accurately predict the duration or extent of the impact of the COVID-19 virus. We will continue to assess our operations and will continue to consider the guidance of local governments throughout the world. If economic conditions caused by the pandemic do not recover as currently estimated by management or market factors currently in place change, there could be a further impact on our results of operations, financial condition and cash flows from operations.
Results of Operations
Our consolidated results, in thousands except for per share data, are as follows:
For the three months
Change
% Change
For the six months
(in thousands of U.S. dollars)
2021 vs. 2020
1,55,153
1,29,459
25,694
3,23,176
2,46,949
76,227
31
1,22,387
28,211
30
2,39,455
1,76,721
62,734
35
(2,517
(7
%)
13,493
5,196
28,711
53
3,131
4,746
24,808
590
51,420
617
2,868
67
3,408
37
290
129
955
277
(10,086
(55
13,035
63
26,207
2,06,937
1,04,662
1,02,275
98
(28,724
111
(1,23,216
(88,782
258
(5,108
106
(9,542
Non-operating (expense) income,
net
1,37,399
(189
1,13,610
1,99,618
(232
(1,03,441
1,03,567
(100
(1,31,010
1,01,294
(77
8,521
(60
19,108
(95
95,046
(106
(1,10,993
82,186
(74
Key Operating Metrics
We use the following key operating metrics to evaluate our business and operations, measure our performance, identify trends affecting our business, project our future performance, and make strategic decisions. Other companies, including companies in our industry, may calculate key operating metrics with similar names differently which may reduce their usefulness as comparative measures. Certain variances are labeled as not meaningful ("NM") throughout management's discussion and analysis.
1,29,224
1,05,968
1,36,055
1,40,271
Cannabis gross margin
34
48
Cannabis adjusted gross margin
Beverage alcohol gross margin
57
60
Distribution gross margin
Wellness gross margin
28
Adjusted EBITDA
13,760
10,139
26,457
18,209
3,31,783
1,48,205
Working capital
3,93,350
3,21,904
Free cash flow
(24,093
(6,863
(1,25,940
(76,918
Adjusted free cash flow
(15,973
11,343
(69,430
(56,254
NA=This reporting segment did not exist in the prior year period. The related acquisition occurred thereafter.
Segment Reporting
Management updated our reporting segments during the six months ended November 30, 2021. While the Company reported “business under development” as a fifth reporting segment in its previous Annual Report, management determined that this no longer met the definition of a reporting segment. Our reporting segments revenue is primarily comprised of revenues from our cannabis, distribution, beverage alcohol operations, and wellness, as follows:
ended November 30,
4,009
23,256
(5,114
(4,216
(3
12,997
NM
28,458
Total net revenue
Our geographic revenue is, as follows:
17,968
33
1,62,986
1,05,667
57,319
54
1,202
1,50,925
1,38,791
12,134
6,524
514
6,774
272
Our geographic capital assets are, as follows:
4,67,646
5,04,575
(36,929
1,32,666
1,40,838
(8,172
(6
(1,348
(26
Total capital assets
6,04,249
6,50,698
(46,449
Cannabis revenue based on market channel is, as follows:
(in thousands of US dollars)
Revenue from Canadian medical cannabis
products
1,669
3,663
29
Revenue from Canadian adult-use cannabis
(8,640
(15
1,19,128
1,15,123
4,005
Revenue from wholesale cannabis
819
(1,273
(24
Revenue from international cannabis
9,426
220
19,692
460
Total cannabis revenue
3,274
1,63,362
1,37,275
26,087
Excise taxes
735
(5
(2,831
Total cannabis net revenue
Revenue from Canadian medical cannabis products: Revenue from Canadian medical cannabis products increased 27% to $7.9 million and 29% to $16.3 million for the three and six months ended November 30, 2021, compared to revenue of $6.3 million and $12.6 million for the prior year same periods. This increase in revenue from medical cannabis products is primarily driven by the contributions of legacy Tilray’s medical cannabis business resulting from the business combination of April 30, 2021. The increase is also due to new innovative product launches, including our new brand Symbios launched earlier in the year, to address unmet medical needs and to provide patients with more choices in managing their health conditions with medical products. There has been some offset from downward pressure caused by the COVID-19 pandemic from patients unable or unwilling to see a doctor as well as increased competition from the adult-rec and the price compression therein.
Revenue from Canadian adult-use cannabis products: During the three and six months ended November 30, 2021, our gross revenue from Canadian adult-use cannabis product decreased 15% to $49.5 million and increased 3% to $119.1 million for the three and six months ended November 30, 2021 compared to revenue of $58.2 million and $115.1 million for the prior year same periods. The three month decreases in gross revenue is primarily due to a series of factors, as follows:
We continued to experience the residual impact related to the COVID-19 pandemic in relation to consumer behaviors and to a much heavier focus on price;
We continued to experience a shift in retail cannabis demand to price-based brands during the COVID-19 pandemic. The decline is primarily due to shifting consumer trends to price compression in the market, magnified by consumer behavior during the lockdowns; and
We also experienced additional declines in average gross selling price due to increased price-based competition in the more recent months from increased competition in the market. During the three months ended November 30, 2021, we maintained our market leadership but experienced a decline in market share percent to 12.8% from 15.7% at May 31, 2021.
We continue to focus on expanding our product offerings to accommodate the changes in our adult-use customers, During the first quarter, we completed our first shipments to Nunavut. In the second quarter we expanded the terms of our distribution partnership with Rose LifeScience, which will now represent the entire Tilray portfolio; and expanded our partnership with Great North Distributors, Inc. to cover all of Canada, except for Quebec, using its established network.
The six months increase in gross revenue is attributable to the inclusion of Tilray legacy products in our brand portfolio offerings.
Wholesale cannabis revenue: Revenue from wholesale cannabis products increased 57% to $2.3 million and decreased 24% to $4.0 million for the three and six months ended November 30, 2021 compared to revenue of $1.4 million and $5.2 million for the prior year same periods. The Company continues to believe that wholesale cannabis revenue will remain subject to quarter-to-quarter variability and is based on opportunistic sales.
International cannabis revenue: Revenue from international cannabis products increased 220% to $13.7 million and 460% to $24.0 million for the three and six months ended November 30, 2021 compared to revenue of $4.3 million and $4.3 million for the prior year same periods. The increase is due to the contributions of legacy Tilray’s larger international cannabis business as well as newly obtained business to business transactions. In Europe, we believe that, despite continuing COVID-19 pressure, cannabis legalization (both medicinal and adult-use) will continue to gain traction, especially following actions of the German and Maltese governments. We also continue to believe that Tilray remains uniquely positioned to win in these markets with its infrastructure being the only company with EU-GMP cultivation facilities in two countries within Europe and our demonstrated commitment to the consistency, quality and safety of our products.
Germany. During the three and six months ended November 30, 2021, we continued to experience some deceleration in the growth of our business caused by the COVID-19 pandemic, which resulted in some patients unable or unwilling to see a doctor. Despite these impacts,
We generated 16% revenue growth in connection with our medical cannabis extract products when compared to the prior quarter.
We generated 10% revenue growth on our dried flower products when compared to the prior quarter.
We are a market leader in medical cannabis within Germany with an overall market share of approximately 19.7% with our dried flower, extracts and Dronabinol products.
Portugal. We are the only approved medical cannabis product in the market, which is distributed through our distribution partners to medical stakeholders throughout Portugal.
Luxembourg. We were selected by the Luxembourg Ministry of Health as the exclusive supplier for the country’s medical cannabis program for dried flower and oils.
Switzerland. We distribute our cannabinoid-based medical extract products to Suisse patients through our partner “Lehenmatt Apotheke”.
France. We were selected as one of the four suppliers in a two-year pilot experiment to supply approximately 3,000 patients with medical cannabis.
Italy. We are one of five distributors licensed to import medical cannabis into the Italian medical cannabis market.
United Kingdom. In the quarter, we completed a shipment of a wide range of dried flower products with high, medium and balanced potencies into the UK medical cannabis market.
Ireland. We are one out of only three suppliers within the Irish market whose cannabinoid-based medical products are eligible for reimbursement.
Australia. We continue to strengthen the reputation of our Tilray medical brand whereby, through a contract with the Department of Health in Victoria, 90 children are now participating in a government funded seizure program utilizing our cannabinoid-based medical products, which will continue to the end of calendar year 2024.
Revenue from Distribution operations decreased 7% to $68.9 million and 3% to $136.1 million for the three and six months ended November 30, 2021 compared to revenue of $74.0 million and $140.3 million for the prior year same periods. Included in distribution revenue is $68.0 million and $133.0 million of revenue from CC Pharma, and $0.9 million and $3.1 million of revenue from other distribution companies for the three and six months ended November 30, 2021 versus $72.0 million and $136.2 million from CC Pharma and $2.0 million and $4.1 million from other distribution companies, respectively, in the prior year same periods.
The decrease in revenue during the three-months ended November 30, 2021 is primarily due to the impact of changes in the exchange rate between the Euro and USD totaling a $5.3 million reduction to the comparable prior period. Additionally, the decrease in revenue during the six-months ended November 30, 2021 was also the result of the negative impact of an isolated weather event in Densborn, Germany. Specifically, heavy flooding impacted CC Pharma and forced a business closure for approximately five days leading to a decrease in net revenue in the period of almost $5.0 million.
Revenue from our Beverage operations increased to $13.7 million and $29.2 million for the three and six months ended November 30, 2021 compared to revenue of $0.7 million for the prior year same periods. SweetWater operates on-premises, wholesale, and specialty sales. Revenues continued to be negatively affected by the COVID-19 pandemic impacting on-premise consumers. The increase is substantially related to our acquisition of SweetWater on November 20, 2020.
Earlier in the year, our beverage operations began operating our new brewing facility in Colorado and opened a new taproom at the Denver International Airport in connection with its strategic expansion initiative. In addition, we released an extensive new line of innovative products, including seltzers, as well as a new beer offering developed in collaboration with our Canadian cannabis Broken Coast brand and a new vodka soda offering developed in collaboration with our Canadian cannabis Riff brand as Tilray continues to strengthen its strategic position in the U.S. by expanding its presence through acquisitions and collaboration with other Tilray cannabis brands. This strategy of leveraging our growing portfolio of brands enables the company to launch THC-based product adjacencies upon federal legalization in the U.S.
Included in Wellness revenue is $13.8 million and $28.7 million from Manitoba Harvest, for the three and six months ended November 30, 2021. Manitoba Harvest was part of the assets acquired in the Arrangement. There are no comparable revenues in the prior year being presented.
Gross profit, gross margin and adjusted gross margin for our reporting segments
Our gross profit and gross margin for the three and six months ended November 30, 2021 and 2020, is as follows:
Cannabis
15,627
30,043
(11,618
(46
(6,787
(13
Gross margin
(23
(14
(29
Inventory valuation adjustments
(0%)
Adjusted gross profit (1)
25,516
382
55,774
5,213
Adjusted gross margin (1)
47
Distribution
(3,026
(506
(0
(2,088
(21
(3,710
(19
(2
(17
Beverage alcohol
13,790
30,273
(793
(1,815
5,640
12,302
7,357
16,156
Wellness
170,644
144,892
25,752
359,173
278,300
80,873
(15,491
(15,433
(58
(35,997
(31,351
(4,646
(1
62
44,766
9,483
95,721
25,493
36
118
(1)
Gross profit (excluding inventory valuation adjustments) and gross margin percentage (excluding inventory valuation adjustments) are non-GAAP financial measures.
Cannabis gross margin: Gross margin decreased during the three and six months ended November 30, 2021 to 23% and 34% from 46% and 48% versus the prior year same periods, reflecting the addition of sales of Tilray brands that have higher costs to produce than our legacy brands and a non-cash inventory write down of $12 million in November 2021. Significant efforts have been taken to reduce the Company’s cultivation costs at its legacy Tilray Canadian facilities, including announcing the shutdown of both the Enniskillen and Nanaimo facilities. In the interim and until the inventory cultivated at these facilities work their way through inventory, we expect to report lower gross margins until all inventory is cultivated at legacy Aphria facilities. Our European operations continue to work to optimize the cost structure for their cannabis growing facilities, including working with the Canadian operations team, all in an effort to continually will lower our per unit costs.
Distribution gross margin: Gross margin of 11% and 11% for the three and six months ended November 30, 2021 slightly decreased versus the same periods in the prior year driven by increased costs as the Company’s primary source of products were unable to ship during border closures and during periods of peak demand.
Beverage alcohol gross margin: Gross margin of 57% and 57% for the three and six months ended November 30, 2021 are in line with our expectations. We did not operate in this segment until the final week of the second quarter of the prior year.
Wellness gross margin: Gross margin of 28% and 27% for the three and six months ended November 30, 2021 are in line with our expectations and consistent with the preceding fiscal quarter. We acquired the wellness business in the Arrangement and did not operate in this segment during the same periods during prior year.
Operating expenses
Operating expenses are comprised of general and administrative, share-based compensation, selling, amortization, marketing and promotion, research and development, and transaction costs. These costs increased by $26.2 million and $102.3 million for the three and six months ended November 30, 2021 as compared to prior year same periods. This was primarily due to reporting full quarters of operating expenses for SweetWater and Tilray, including non-cash amortization charges associated with definite life intangible assets acquired and general and administrative expenses. The remaining increase is from transaction costs related to non-recurring expenses associated with our current acquisitions and evaluation of future potential acquisition, and one-time litigation costs associated with the acquired net assets.
General and administrative costs
During the three and six months ended November 30, 2021, increased by 18% and 53% as compared to prior year same periods.
(474
366
788
9,134
(672
(8
5,296
2,764
50
9,331
112
2,091
72
3,516
58
184
(38
457
87
522
584
Total general and
administrative costs
Executive compensation decreased in the three months and increased the six months ended November 30, 2021. The slight decrease in the three months compared to the prior period is primarily related to one-time changes in the overall compensation structure. The increase for the six month period compared to the prior period is primarily due to an increase in the number of directors and executive level personnel on our board of directors and executive management team, respectively, and an increase in base salaries commensurate with the increased complexity of our Company.
Office and general increased during the three and six months ended November 30, 2021 primarily due to reporting SweetWater and Tilray for the periods and the additional one-time costs associated with the upcoming closure of our Nanaimo facility.
Salaries and wages decreased in the three months and increased the six months ended November 30, 2021. The slight decrease from the prior period is primarily related to one-time changes in the overall compensation structure. The increase is primarily due to additions associated with new acquisitions from prior year. The Company’s headcount increased to approximately 1,800 employees as a result of the Arrangement compared to 1,000 employees as of November 30, 2020.
The Company recognized stock-based compensation expense of $8.3 million and $17.7 million for the three and six months ended November 30, 2021 compared to $5.5 million and $8.3 million for the same periods in the prior year. The increase is primarily due to increased number of employees and the accelerated vesting of certain of our stock-based compensation awards tied to the Arrangement. Stock options are valued using the Black-Scholes valuation model and represents a non-cash expense, restricted share units (“RSUs”) are valued based on the graded vesting and the grant date fair value.
Insurance expense for the three and six months ended November 30, 2021 increased due primarily to our directors and officers’ insurance policy. This increase reflects an increase in premium rates, as the Company continued with legacy Tilray’s rating history.
Selling costs
For the three months ended November 30, 2021, the Company incurred selling costs of $9.2 million or 5.9% of revenue as compared to $6.1 million and 4.2% of revenue in the prior year same period. For the six months ended November 30, 2021, the Company incurred selling costs of $16.6 million or 5.1% of revenue as compared to $11.9 million and 4.3% of revenue in the prior year same period. These costs relate to third-party distributor commissions, shipping costs, Health Canada cannabis fees, and patient acquisition and maintenance costs. Patient acquisition and ongoing patient maintenance costs include funding to individual clinics to assist with additional costs incurred by clinics resulting from the education of patients using the Company’s products. The increase in selling costs as a percent of revenue in both the three and six-month periods resulted from incurred costs associated with multiple distributors in the same location, which represent a duplication of costs that will be reduced upon achievement of synergies. The increase is mainly driven by the combination of legacy Tilray.
The Company incurred non-production related amortization charges of $29.0 million and $59.8 million for the three and six months ended November 30, 2021 compared to $4.2 million and $8.3 million in the prior year same periods. The increase is associated with the amortization on the acquired definite life intangible assets from SweetWater and Tilray.
Marketing and promotion costs
For the three and six months ended November 30, 2021, the Company incurred marketing and promotion costs of $7.1 million and $12.6 million as compared to $4.3 million and $9.2 million in the prior year same periods. The increase is mainly driven by the combination of legacy Tilray.
Research and development costs were $0.5 million and $1.3 million during the three and six months ended November 30, 2021 compared to $0.2 million and $0.3 million in the prior year same periods. These relate to external costs associated with the development of new products. Although the Company spends a significant amount on research and development, the majority of these costs remain in costs of sales, as the Company does not reclassify research and development costs related to the cost of products consumed in research and development activities.
The three month decrease is associated with the closing of the SweetWater acquisition in the prior period. This six month increase is associated with the solicitation of shareholder votes supporting an increase in the number of authorized common stock shares, transaction closing costs related to the Arrangement, the MM Transaction and the evaluation of other potential acquisitions and one-time litigation costs.
Non-operating (expense) income, net
Non-operating (expense) income is comprised of:
Change in fair value of
convertible debenture
1,27,036
(180
1,66,066
(236
warrant liability
(6,809
202
3,798
Loss on long-term
investments
(1,434
(1,989
131
Other non-operating
(losses) gains, net
(1,572
(87
(7,326
(132
Total non-operating
income (expense)
For the three and six months ended November 30, 2021, the Company recognized a change in fair value of its APHA 24 convertible debentures of $56.4 million and $95.7 million, compared to a decrease in value of $70.7 million and $70.3 million for the prior year same periods. The change is driven primarily by the changes in the Company’s share price and the change in the trading price of the convertible debentures. Additionally, for the three and six months ended November 30, 2021 Company recognized a change in fair value of its warrants of resulting in a gain of $20.2 million and $37.7 million acquired as part of the Arrangement, also as a result of the decrease in our share price. Furthermore, for three and six months ended November 30, 2021 the Company recognized a loss of $9.5 million and $15.2 million, resulting from the changes in foreign exchange rates during the period, compared to losses of $3.4 million and $19.7 million for the prior year same periods, largely associated with the strengthening of the US dollar against the Canadian dollar. The remaining other losses relate to changes in fair value in the Company’s convertible notes receivable and long-term investments.
Use of Non-GAAP Measures
We have included in this report measures of financial performance that are not defined by GAAP. We believe that these measures provide useful information to investors and include these measures in other communications to investors. These non-GAAP measures include:
gross profit (excluding inventory valuation adjustments),
cannabis gross profit and margin (excluding inventory valuation adjustments),
adjusted net income (loss),
free cash flow,
adjusted free cash flow, and
adjusted EBITDA.
For each of these non-GAAP financial measures, we are providing below a reconciliation of the differences between the non-GAAP measure and the most directly comparable GAAP measure, an explanation of why our management and Board of Directors believe the non-GAAP measure provides useful information to investors and any additional purposes for which our management and Board of Directors use the non-GAAP measures. These non-GAAP measures should be viewed in addition to, and not in lieu of, the comparable GAAP measures.
All of these non-GAAP financial measures should be considered in addition, and not in lieu of, the financial measures calculated and presented in accordance with accounting principles generally accepted in the United States of America, (“GAAP”). These measures, which may be different than similarly titled measures used by other companies, are presented to help investors’ overall understanding of our financial performance and should not be considered a substitute for, or superior to, the financial information prepared and presented in accordance with GAAP.
Reconciliation of Non-GAAP Financial Measures to GAAP Measures
Adjusted net income (loss) and adjusted EBITDA
Adjusted net income (loss)
(32,181
8,500
(40,681
(479
(82,970
8,055
(91,025
(1,130
3,621
8,248
45
Adjusted net loss represents a non-GAAP financial measure that does not have any standardized meaning prescribed under GAAP and may not be comparable to similar measures presented by other companies. Adjusted net income is calculated as net (loss) income plus (minus) the unrealized loss (gain) on convertible debentures, a non-cash item, share-based compensation, foreign exchange (loss) gain, all non-cash items, and transaction costs, costs which will not necessarily continue in future periods depending on the frequency of additional M&A considered by the Company. It represents a measure management uses in evaluating operating results to reduce the impact of the volatility caused by fair value accounting of instruments associated with our capital structure, that have no impact on operations. The increase in adjusted net loss is primarily driven by higher net loss stemming from higher amortization costs associated with the definite lived assets acquired during the year, the additional general and administrative costs associated with Tilray for the full quarter and increased non-cash unrealized loss on changes to the fair value of our convertible debentures.
Adjusted net loss reconciliation:
Unrealized (gain) loss on convertible
debentures
(56,353
70,683
(1,27,036
(95,723
70,343
(1,66,066
Foreign exchange loss (gain)
10,180
3,371
6,809
15,904
19,702
(3,798
(20,178
(37,713
Inventory write down
Adjusted EBITDA is a non-GAAP financial measure that does not have any standardized meaning prescribed by GAAP and may not be comparable to similar measures presented by other companies. The Company calculates adjusted EBITDA as net (loss) income before income taxes, net interest expense, depreciation and amortization, equity in net loss of equity-method investees, inventory write downs, stock-based compensation, integration activities, transaction costs, unrealized currency gains and losses and other adjustments.
The Company’s management believes that this presentation provides useful information to management, analysts and investors regarding certain additional financial and business trends relating to its results of operations and financial condition. In addition, management uses this measure for reviewing the financial results of the Company and as a component of performance-based executive compensation.
We do not consider Adjusted EBITDA in isolation or as an alternative to financial measures determined in accordance with GAAP. The principal limitation of Adjusted EBITDA is that it excludes certain expenses and income that are required by GAAP to be recorded in our consolidated financial statements. In addition, Adjusted EBITDA is subject to inherent limitations as this metric reflects the exercise of judgment by management about which expenses and income are excluded or included in determining Adjusted EBITDA. In order to compensate for these limitations, management presents Adjusted EBITDA in connection with GAAP results.
For the period ended November 30, 2021, adjusted EBITDA increased primarily from favorable effects of new lines of business, offset by the inclusion of legacy Tilray’s cannabis business, while we work to achieve our synergies plan, as follows:
Adjusted EBITDA reconciliation:
Income taxes
9,940
4,832
5,108
20,110
10,568
9,542
Non-operating expense (income), net
(64,750
72,649
(1,37,399
(1,13,610
86,008
(1,99,618
37,471
12,031
25,440
211
53,794
Facility start-up and closure costs
1,700
7,900
Lease expense
900
373
527
141
1,600
630
970
154
Adjusted EBITDA should not be considered in isolation from, or as a substitute for, net loss. There are a number of limitations related to the use of Adjusted EBITDA as compared to net loss, the closest comparable GAAP measure. Adjusted EBITDA adjusts for the following:
Current and deferred income tax expenses and recoveries, which could be a significant recurring expense or recovery in our business in the future and reduce or increase cash available to us.
Interest expense and loss on disposal of property and equipment to reflect ongoing operating activities;
Non-cash foreign exchange gains or losses, which accounts for the effect of both realized and unrealized foreign exchange transactions. Unrealized gains or losses represent foreign exchange revaluation of foreign denominated monetary assets and liabilities;
Non-cash change in fair value of warrant liability;
Non-cash amortization and amortization expenses and, although these are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future;
Stock-based compensation expenses, which has been, and will continue to be for the foreseeable future, a significant recurring expense in our business and an important part of our compensation strategy;
Non-cash inventory valuation adjustments;
Non-cash loss from equity method investments;
Costs incurred to start up new facilities and/or to close facilities in Nanaimo, Canada and Enniskillen, Canada;
Lease expense;
Non-cash inventory write down; and
Transaction costs associated with current and future business acquisitions.
Liquidity and Capital Resources
We actively manage our cash and investments in order to internally fund operating needs, make scheduled interest and principal payments on our borrowings, and make acquisitions. We believe that existing cash, cash equivalents, short-term investments and cash generated by operations, together with access to external sources of funds, will be sufficient to meet our domestic and foreign capital needs in the foreseeable future.
The following table sets forth the major components of our statements of cash flows for the periods presented:
Effect on cash of foreign currency translation
Decrease in cash and cash equivalents
Cash flows from operating activities
The changes in net cash used in operating activities during the six months ended November 30, 2021 compared to the prior year same period is primarily related to payments associated with the Arrangement, income taxes at Aphria Diamond and accounts payable and accrued liabilities decreases in the period. This net cash used in operating activities was positively impacted by reductions in inventory and collections of accounts receivable.
Cash flows from investing activities
The change in net cash used in investing activities in the first two fiscal quarters of 2022 as compared to the first two fiscal quarters of 2021 is primarily due to cash paid for the SweetWater acquisition in fiscal year 2021.
Cash flows from financing activities
Cash used in financing activities in the first two fiscal quarters of 2022 as compared to the first two fiscal quarters of 2021 is primarily due to an early payment on SweetWater’s term loan facility and the share capital financing completed in fiscal year 2021 that did not recur in fiscal year 2022.
Free cash flow and adjusted free cash flow
Free cash flow and adjusted free cash flow are non-GAAP measures. Free cash flow is relevant to management and investors, because it represents the cash flow available to the Company to repay creditors or potentially make distributions to investors. The measure is comprised of two GAAP amounts deducted from each other which are net cash flow used in operating activities less investments, net of proceeds from disposals, in capital and intangible assets. Adjusted free cash flow removes the cash impact of acquisitions from free cash flow. Our free cash flow and adjusted free cash flow were, as follows:
Net cash provided by (used in) operating
activities
(17,121
2,438
(19,559
(802
(1,10,348
(56,686
Less: investments in capital and intangible
assets, net
(6,972
(9,301
2,329
(25
(23,256
7,664
(33
(17,230
251
(49,022
64
Cash expended related to acquisitions
56,510
35,846
173
(27,316
(241
(13,176
Refer to Part I, Financial Information, Note 24 Subsequent Events of this interim report.
Off Balance Sheet Arrangements
At November 30, 2021, we did not have any off-balance sheet arrangements as defined in Item 303(a)(4) of Regulation S-K that have had, or are likely to have, a material current or future effect on our consolidated financial statements.
Contingencies
In addition to the litigation described in the Part II, Item 1 - Legal Proceedings, the Company is and may be a defendant in lawsuits from time to time in the normal course of business. While the results of litigation and claims cannot be predicted with certainty, the Company believes the reasonably possible losses of such matters, individually and in the aggregate, are not material. Additionally, the Company believes the probable final outcome of such matters will not have a material adverse effect on the Company’s consolidated results of operations, financial position, cash flows or liquidity.
Critical Accounting Policies
Our financial statements are prepared in accordance with accounting principles generally accepted in the United States. The accounting principles we use require us to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and amounts of income and expenses during the reporting periods presented. We believe in the quality and reasonableness of our critical accounting policies; however, materially different amounts may be reported under different conditions or using assumptions different from those that we have applied. The accounting policies that have been identified as critical to our business operations and to understanding the results of our operations pertain to revenue recognition, valuation of inventory, valuation of long-lived assets, goodwill and intangible assets, stock-based compensation and valuation allowances for deferred tax assets. The application of each of these critical accounting policies and estimates is discussed in Part II, Item 7, Management’s Discussion and Analysis of Financial Condition and Results of Operations, of our Annual Report on Form 10-K for the fiscal year ended May 31, 2021.
Recently Issued Accounting Pronouncements
A description of recently issued accounting pronouncements that may potentially impact our financial position and results of operations is disclosed in “Part I, Item 1. Note 2 – Basis of presentation and summary of significant accounting policies” to our financial statements appearing elsewhere in this Quarterly Report on Form 10-Q.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
There have been no significant changes in market risk from those addressed in the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2021 during the three months ended November 30, 2021. See the information set forth in Part II, Item 7A, Quantitative and Qualitative Disclosures About Market Risk, of the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2021.
Item 4. Controls and Procedures.
Disclosure Controls and Procedures
We maintain disclosure controls and procedures (as that term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) that are designed to ensure that information required to be disclosed in our reports under the Exchange Act is recorded, processed, and summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosures. Any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. An evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this Quarterly Report was made under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer.
Based upon this evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of November 30, 2021, our disclosure controls and procedures (a) are effective to ensure that information required to be disclosed by us in reports filed or submitted under the Exchange Act is timely recorded, processed, summarized and reported and (b) include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in reports filed or submitted under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
Consistent with guidance issued by the SEC, the scope of management’s assessment of the effectiveness of our disclosure controls and procedures did not include the internal controls over financial reporting of legacy Tilray, which we acquired on April 30, 2021. Legacy Tilray represented 8.9% of our consolidated assets and 25.8% of our consolidated revenues as of and for the quarter ended November 30, 2021.
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(f) and 15d-15(f) under the Exchange Act) that occurred during the period covered by this Quarterly Report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. As mentioned above, the Company acquired legacy Tilray on April 30, 2021. The Company is in the process of reviewing the internal control structure of legacy Tilray and, if necessary, will make appropriate changes as it integrates legacy Tilray into the Company’s overall internal control over financial reporting process.
39
PART II—OTHER INFORMATION
Item 1. Legal Proceedings.
"Item 3. Legal Proceedings" of our Annual Report on Form 10-K for the fiscal year ended May 31, 2021 includes a discussion of our legal proceedings. There have been no material changes from the legal proceedings described in our Form 10-K, except with respect to the matters disclosed below.
Class Action Suits and Shareholder Derivative Suits – U.S. and Canada
Authentic Brands Group Related Class Action (New York, United States)
On May 4, 2020, Ganesh Kasilingam filed a lawsuit in the U.S. District Court for the Southern District of New York, against Tilray, Inc., Brendan Kennedy and Mark Castaneda, on behalf of himself and a putative class, seeking to recover damages for alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Kasilingam litigation”). The complaint alleged that Tilray and the individual defendants overstated the anticipated advantages of the Company’s revenue sharing agreement with Authentic Brands Group (“ABG”), announced on January 15, 2019, and that the plaintiff suffered losses when Tilray’s stock price dropped after Tilray recognized an impairment with respect to the ABG deal on March 2, 2020.
On September 27, 2021, the U.S. District Court entered an Opinion & Order granting the Defendants’ motion to dismiss the complaint in the Kasilingam litigation. On December 3, 2021, the lead plaintiff filed a second amended complaint alleging similar claims against Tilray and Brendan Kennedy. The Defendants intend to file a motion to dismiss this amended complaint as well.
Tilray, Inc. Reorganization Litigation (Delaware, New York)
On February 27, 2020, Tilray stockholders Deborah Braun and Nader Noorian filed a class action and derivative complaint in the Delaware Court of Chancery styled Braun v. Kennedy, C.A. No. 2020-0137-KSJM. On March 2, 2020, Tilray stockholders Catherine Bouvier, James Hawkins, and Stephanie Hawkins filed a class action and derivative complaint in the Delaware Court of Chancery styled Bouvier v. Kennedy, C.A. No. 2020-0154-KSJM.
On March 4, 2020, the Delaware Court of Chancery entered an order consolidating the two cases and designating the complaint in the Braun/Noorian action as the operative complaint. The operative complaint asserts claims for breach of fiduciary duty against Brendan Kennedy, Christian Groh, Michael Blue, and Privateer Evolution, LLC (the “Privateer Defendants”) for alleged breaches of fiduciary duty in their alleged capacities as Tilray’s controlling stockholders and against Kennedy, Maryscott Greenwood, and Michael Auerbach for alleged breaches of fiduciary duties in their capacities as directors and/or officers of Tilray in connection with the prior merger of Privateer Holdings, Inc. with and into a wholly owned subsidiary (the “Downstream Merger”). The complaint alleges that the Privateer Defendants breached their fiduciary duties by causing Tilray to enter into the Downstream Merger and Tilray’s Board to approve that Downstream Merger, and that Defendants Kennedy, Greenwood, and Auerbach breached their fiduciary duties as directors by approving the Downstream Merger. Plaintiffs allege that the Downstream Merger gave the Privateer Defendants hundreds of millions of dollars of tax savings without providing a corresponding benefit to Tilray and its minority stockholders and that the Downstream Merger unfairly transferred and extended Kennedy, Blue, and Groh’s control over Tilray. On July 17, 2020, the plaintiffs filed an amended complaint asserting substantially similar claims. On August 14, 2020, Tilray and the Privateer Defendants moved to dismiss the amended complaint. At the February 5, 2021 hearing on Defendants’ Motions to Dismiss, the Plaintiffs agreed that their perpetuation of control claims are moot and stated that they intend to move for a fee award in connection with those claims. On June 1, 2021, the Court denied Defendants’ Motions to Dismiss the Amended Complaint.
In August 2021, the Company’s Board of Directors established a Special Litigation Committee (the “SLC”) of independent directors to re-assert director control and investigate the derivative claims in this litigation matter. The SLC has appointed the law firm Wilson Sonsini to assist the SLC with an ongoing investigation of the underlying claim and determine whether continued prosecution of such claims is in the best interests of the Company. The SLC has successfully moved to have the Plaintiff’s discovery stayed during their investigation.
Item 1A. Risk Factors.
“Item 1A. Risk Factors” of our Annual Report on Form 10-K for the fiscal year ended May 31, 2021 includes a discussion of our known material risk factors, other than risks that could apply to any issuer or offering. A summary of our risk factors is included below. There have been no material changes from the risk factors described in our Form 10-K.
We are still completing our integration efforts following completion of the Arrangement between Tilray and Aphria on April 30, 2021 and may experience challenges fully achieving the expected benefits of the Arrangement.
We face ongoing risks related to the ongoing COVID-19 pandemic. The impact of the Delta, Omicron and any new variants will continue to adversely impact our operations and adversely adverse effect our business, results of operations and financial condition.
Our business is dependent upon regulatory approvals and licenses, ongoing compliance and reporting obligations, and timely renewals.
Government regulation is evolving, and unfavorable changes could impact our ability to carry on our business as currently conducted and the potential expansion of our business.
Our production and processing facilities are integral to our business and adverse changes or developments affecting our facilities may have an adverse impact on our business.
We face intense competition, and anticipate competition will increase, which could hurt our business.
We may not be able to successfully develop new products or commercialize such products.
The long-term effect of the legalization of adult-use cannabis in Canada on the medical cannabis industry is unknown, and may negatively impact our medical cannabis business.
United States regulations relating to hemp-derived CBD products are unclear and rapidly evolving, and changes may not develop in the timeframe or manner most favorable to our business objectives.
We have a limited operating history and a history of net losses, and we may not achieve or maintain profitability in the future.
We are subject to litigation, arbitration and demands, which could result in significant liability and costs, and impact our resources and reputation.
We are exposed to risks relating to the laws of various countries as a result of our international operations.
Our strategic alliances and other third-party business relationships may not achieve the intended beneficial impact and expose us to risks.
We depend on significant customers for a substantial portion of our revenue. If we fail to retain or expand our customer relationships or significant customers reduce their purchases, our revenue could decline significantly.
Significant interruptions in our access to certain supply chains for key inputs such as raw materials, supplies, electricity, water and other utilities may impair our operations.
Management may not be able to successfully establish and maintain effective internal controls over financial reporting.
The price of our common stock in public markets has experienced and may continue to experience severe volatility and fluctuations.
The volatility of our stock and the stockholder base may hinder or prevent us from engaging in beneficial corporate initiatives.
The terms of our outstanding warrants may limit our ability to raise additional equity capital or pursue acquisitions, which may impact funding of our ongoing operations and cause significant dilution to existing stockholders.
We may not have the ability to raise the funds necessary to settle conversions of the convertible securities in cash or to repurchase the convertible securities upon a fundamental change.
We may not become the world's leading cannabis-focused consumer branded company with up to $4 billion of revenue by 2024;
We are subject to other risks generally applicable to our industry and the conduct of our business.
41
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
Recent Sales of Unregistered Equity Securities
On October 13, 2021, Tilray entered into an assignment and assumption agreement with Double Diamond Holdings Ltd. (“DDH”), an Ontario corporation, pursuant to which, among other things, Tilray acquired from DDH a promissory note in the amount of CAD$34,300,000 (the “Note”) payable by 1974568 Ontario Limited (“Aphria Diamond”). DDH is a joint venturer with Aphria Inc. (Tilray’s wholly-owned subsidiary) in Aphria Diamond. As consideration for the Note, Tilray issued 2,677,596 shares of its Class 2 common stock to DDH.
Effective November 10, 2021, Tilray entered into a termination and settlement agreement with ABG Intermediate Holdings 2, LLC (“ABG”) and certain of its affiliates. Pursuant to this settlement agreement, the Company issued 215,901 shares of its Class 2 common stock to ABG in exchange for the release of certain claims.
On December 1, 2021, the Company acquired all of the membership interests of Cheese Grits, LLC, a Georgia based company (the “SW Acquisition”) that owned the real estate utilized and previously leased by SweetWater Brewing Company. . As consideration for the SW Acquisition, the Company paid a purchase price at closing equal to $30,665,000, which was satisfied through the assumption of outstanding debt as well as the issuance of 843,687 shares of Tilray’s Class 2 common stock. On December 17, 2021, the Company issued an additional 82,224 Class 2 common shares as consideration for the SW Acquisition.
On December 7, 2021, the Company acquired all of the membership interests of Double Diamond Distillery LLC (d/b/a Breckenridge Distillery), a Colorado limited liability company (the “Breckenridge Acquisition”). As consideration for the Breckenridge Acquisition, the Company paid a purchase price in an aggregate amount equal to $102,900,000, which purchase price was satisfied through the issuance of 11,245,511 shares of Tilray’s Class 2 common shares to the selling unitholders.
On December 17, 2021, the Company acquired intellectual property and inventory relating to the Alpine and Green Flash craft brew brands from WC IPA LLC (the “Alpine Acquisition”). As consideration for the Alpine Acquisition, the Company paid a purchase price in an aggregate amount equal to $5,133,000 which purchase price was satisfied through the payment of cash and the issuance of 366,308 shares of Tilray’s Class 2 common shares.
Each of the foregoing issuances of Tilray’s Class 2 common stock was made in reliance on the exemption provided by Section 4(a)(2) of the Securities Act of 1933, as amended, for the offer and sale of securities not involving a public offering. No underwriter participated in the offer and sale of the shares issued pursuant to the foregoing issuances, and no commission or other remuneration was paid or given directly or indirectly in connection therewith.
Item 3. Defaults Upon Senior Securities.
Not applicable.
Item 4. Mine Safety Disclosures.
Item 5. Other Information.
Item 6. Exhibits.
Exhibit
Number
Description
3.1*
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Tilray, Inc. (filed on September 10, 2021)
10.1*
Second Amendment to Credit Agreement with the Bank of Montreal, dated as of December 8, 2020, amended December 7, 2021
31.1*
Certification of Principal Executive Officer 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.
31.2*
Certification of Principal Financial Officer 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.
32.1*
Certification of Principal Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2*
Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101*
The following financial statements from the Company's Quarterly Report on Form 10-Q for the quarter ended November 30, 2021, formatted in Inline XBRL: (i) Consolidated Statements of Financial Position, (ii) Consolidated Statements of Loss and Comprehensive Loss , (iii) Consolidated Statements of Stockholders' Equity, (iv) Consolidated Statements of Cash Flows, and (v) Notes to Consolidated Financial Statements, tagged as blocks of text and including detailed tags.
104*
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
*
Filed herewith.
SIGNATURES
Pursuant to the requirements 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.
Tilray Inc.
Date: January 10, 2022
By:
/s/ Irwin D. Simon
Irwin D. Simon
Chairman and Chief Executive Officer
/s/ Carl Merton
Carl Merton
Chief Financial Officer