AgileThought, Inc. - Annual Report: 2022 (Form 10-K)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||
For the fiscal year ended December 31, 2022 | ||
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||
| For the transition period from __________ to __________ | ||
AgileThought, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-39157 | 87-2302509 | ||||||||||||
| (State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||||||||||||
222 W. Las Colinas Blvd. Suite 1650E, Irving, Texas | (971) - 501-1140 | 75039 | ||||||||||||
| (Address of Principal Executive Offices) | Registrant's telephone number, including area code | (Zip Code) | ||||||||||||
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 A Common Stock, $0.0001 par value per share | AGIL | NASDAQ Capital Market | ||||||||||||
| Warrants, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share | AGILW | NASDAQ Capital Market | ||||||||||||
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x
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 x No o
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 x No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | o | Accelerated filer | x | Emerging growth company | x | ||||||||||||
| Non-accelerated filer | o | Smaller reporting company | x | ||||||||||||||
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. o
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. o
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. o
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to § 240.10D-1(b). o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o No x
As of June 30, 2022, the aggregate market value of the voting common stock held by non-affiliates of the registrant, based on the closing price of $5.17 for shares of the registrant’s Class A common stock, was approximately $94 million. As of March 7, 2023, there were 50,032,843 shares of the registrant’s Class A common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s Definitive Proxy Statement relating to the Annual Meeting of Stockholders are incorporated by reference into Part III of this Annual Report on Form 10-K where indicated. Such Definitive Proxy Statement will be filed with the Securities and Exchange Commission within 120 days after the end of the registrant’s fiscal year ended December 31, 2022.
TABLE OF CONTENTS
AgileThought, Inc. - Annual Report on Form 10-K
December 31, 2022
| Page | |||||||||||
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains forward-looking statements within the meaning of the federal securities laws, which statements involve substantial risks and uncertainties. Forward-looking statements generally relate to possible or assumed future results of our business, financial condition, results of operations, liquidity, plans and objectives. You can generally identify forward-looking statements because they contain words such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other similar expressions that concern our expectations, strategy, plans or intentions. We have based these forward-looking statements largely on our current expectations and projections regarding future events and trends that we believe may affect our business, financial condition and results of operations. The outcome of the events described in these forward-looking statements is subject to risks, uncertainties and other factors described in the section entitled “Risk Factors” and elsewhere in this Annual Report on Form 10-K. Accordingly, you should not rely upon forward-looking statements as predictions of future events. We cannot assure you that the results, events and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results, events or circumstances could differ materially from those projected in the forward-looking statements. Forward-looking statements contained in this Annual Report on Form 10-K include, but are not limited to, statements regarding:
•the financial and business performance of the Company;
•our ability to refinance, repay and/or continue to service our indebtedness;
•our future capital requirements and sources and uses of cash;
•our ability to obtain funding to service and repay our indebtedness and for our future operations;
•our business, expansion plans and opportunities;
•changes in our strategy, future operations, financial position, estimated revenues and losses, projected costs, prospects and plans;
•our ability to develop, maintain and expand client relationships, including relationships with our largest clients;
•changes in domestic and foreign business, market, financial, political, regulatory and legal conditions;
•competition and our ability to grow and manage growth profitably;
•our ability to attract and retain highly skilled information technology professionals;
•our ability to maintain favorable pricing, utilization rates and productivity levels for our information technology professionals and their services;
•our ability to innovate successfully and maintain our relationships with key vendors;
•our ability to successfully identify and integrate any future acquisitions;
•our ability to provide our services without security breaches and comply with changing regulatory, legislative and industry standard developments regarding privacy and data security matters;
•our ability to operate effectively in multiple jurisdictions in Latin America and in the United States in the different business, market, financial, political, legal and regulatory conditions in the different markets;
•developments and projections relating to our competitors and industry;
•the impact of health epidemics, including the COVID-19 pandemic, on our business and the actions we may take in response thereto;
•expectations regarding the time during which we will be an emerging growth company under the Jumpstart Our Business Startups Act of 2012, as amended;
•changes in applicable laws or regulations;
•the outcome of any known and unknown litigation or legal proceedings and regulatory proceedings involving us; and
•our ability to maintain the listing of our securities.
We caution you that the foregoing list may not contain all of the forward-looking statements made in this Annual Report on Form 10-K. In addition, in light of these risks and uncertainties, the matters referred to in the forward-looking statements contained in this Annual Report on Form 10-K may not occur. The forward-looking statements made in this Annual Report on Form 10-K relate only to events as of the date on which the statements are made. We undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements. We do not assume any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
SUMMARY RISK FACTORS
The following is a summary of select risks and uncertainties that could materially adversely affect AgileThought and its business, financial condition and results of operations. You should carefully consider all the information in this Annual Report on Form 10-K, including matters set forth under the heading “Risk Factors.”
•We do not have sufficient cash flows from operating activities to service our substantial amount of indebtedness and other obligations, which could have a material adverse effect on our business, financial condition, results of operations and prospects.
•We need additional capital, and failure to raise additional capital on terms favorable to us, or at all, would limit our ability to meet our debt and other obligations and have a material adverse effect on our business, financial condition, results of operations and prospects.
•Our level of indebtedness has affected our ability to obtain financing or refinance our existing indebtedness, reduces available cash flow for operations and limits our ability to complete certain transactions necessary for growth of our business.
•Our cost reduction initiatives may not deliver the expected results and could disrupt our business.
•We have not complied, and may not in the future, be able to comply with the financial covenants in our credit agreements, which have resulted, and may result, in events of default.
•We have not had, and may not have, sufficient cash flows from operating activities, cash on hand and available borrowings under current or new credit arrangements to satisfy earnout obligations in connection with prior acquisitions.
•We are dependent on our largest clients, and if we fail to maintain these relationships or successfully obtain new engagements, we may not achieve our revenue growth and other financial goals.
•We may not be able to recover or sustain our revenue growth rate consistent with the rate prior to COVID-19 pandemic.
•We must attract and retain highly skilled IT professionals. Failure to hire, train and retain IT professionals in sufficient numbers could have a material adverse effect on our business, financial condition, results of operations and prospects.
•We may not be successful in building a university recruiting and hiring program, which could hamper our ability to scale our business and grow revenue.
•Increases in our levels of attrition may increase our operating costs and adversely affect our business, financial condition, results of operations and prospects.
•Our revenue is dependent on a limited number of industry verticals, and any decrease in demand for IT services in these verticals or our failure to effectively penetrate new verticals could adversely affect our revenue, business, financial condition, results of operations and prospects.
•Our contracts could be unprofitable, and any failure by us to accurately estimate the resources required to complete a contract on time and on budget could have a material adverse effect on our business, financial condition, results of operations and prospects.
•Our operating results could suffer if we are not able to maintain favorable pricing.
•If we do not maintain adequate employee utilization rates and productivity levels, our operating results may suffer and our business, financial condition, results of operations and prospects may be adversely affected.
•We may be unable to effectively manage our growth or achieve anticipated growth, which could place significant strain on our management personnel, systems and resources.
•If we do not successfully manage and develop our relationships with key partners or if we fail to anticipate and establish new partnerships in new technologies, our business, financial condition, results of operations and prospects could be adversely affected.
•Our sales of services and operating results may experience significant variability and our past results may not be indicative of our future performance.
•Strategic acquisitions to complement and expand our business have been and may remain an important part of our competitive strategy. If we fail to acquire companies whose prospects, when combined with our company, would increase our value, then our business, financial condition, results of operations and prospects may be adversely affected.
•We face intense competition.
•We are dependent on members of our senior management team.
•Forecasts of our market size may prove to be inaccurate, and even if the markets in which we compete achieve the forecasted growth, there can be no assurance that our business will grow at similar rates, or at all.
•If we fail to maintain an effective system of disclosure controls and internal control over financial reporting, our ability to produce timely and accurate financial statements or comply with applicable laws and regulations could be impaired.
•Cybersecurity attacks, breaches or other technological failures or security incidents, and changes in laws and regulations related to the internet or changes in the internet infrastructure itself, may diminish the demand for our services and could have a negative impact on our business.
•We may not secure sufficient intellectual property rights or obtain, maintain, protect, defend or enforce such rights sufficiently to comply with our obligations to our clients or protect our brand and we may not be able to prevent unauthorized use of or otherwise protect our intellectual property, thereby eroding our competitive advantages and harming our business.
•If we are unable to protect the confidentiality of our proprietary information, our business and competitive position may be harmed.
•General economic conditions in Mexico may have an adverse effect on our operations and business.
•Fluctuations in currency exchange rates and increased inflation could materially adversely affect our business, financial condition, results of operations and prospects.
•The market price and trading volume of our common stock and warrants has been and will likely continue to be volatile and could decline significantly.
•Our failure to meet the continued listing requirements of Nasdaq could result in a delisting of our securities.
•We may be subject to securities litigation, which is expensive and could divert management attention.
•Future sales of common stock may cause the market price of our securities to drop significantly, even if our business is doing well.
•Anti-takeover provisions contained in our charter and our bylaws, as well as provisions of Delaware law, could impair a takeover attempt.
PART I
Item 1. Business
History of the Company
AgileThought, Inc. (“AgileThought”) offers client-centric, onshore and nearshore agile-first digital transformation services that help our clients transform by building, improving and running new solutions at scale. Our services enable our clients to leverage technology more effectively to focus on better business outcomes. From consulting to application development and cloud services to data management and automation, we strive to create a transparent, collaborative, and responsive experience for our clients.
Prior to our incorporation in Delaware, we were a variable stock corporation organized under the laws of Mexico. We filed a Certificate of Domestication and a Certificate of Incorporation to become a Delaware corporation in February 2019 and changed our name to AN Global Inc. On October 23, 2019, we filed a Certificate of Amendment to our Certificate of Incorporation to change our name to AgileThought, Inc.
Since our inception, we have added a variety of services, acquired several businesses and expanded our operations throughout North America:
• 2000: Founded in Mexico.
• 2015 – 2016: Partnered with Nexxus, completed five acquisitions and established capabilities in digital transformation, cloud solutions, advanced analytics and digital marketing. Also launched digital transformation services.
• 2017: Partnered with Credit Suisse, completed three acquisitions and established capabilities in e-commerce.
• 2018: Acquired 4th Source, expanded U.S. footprint and enhanced presence with clients from the healthcare industry.
• 2019: Acquired AgileThought, LLC, expanded U.S. footprint, enhanced delivery capabilities and presence with large clients within the professional services industry, relocated global headquarters to Dallas, Texas and changed its name to AgileThought, Inc.
On August 23, 2021 (“Closing Date”), LIV Capital Acquisition Corp. (“LIVK”), a special purpose acquisition company, and AgileThought (“Legacy AgileThought”) consummated the transactions contemplated by the definitive agreement and plan of merger (“Merger Agreement”), dated May 9, 2021 (“Business Combination”). Pursuant to the terms, Legacy AgileThought merged with and into LIVK, whereupon the separate corporate existence of Legacy AgileThought ceased, with LIVK surviving such merger (the “Surviving Company”). On the Closing Date, the Surviving Company changed its name to AgileThought, Inc. (the “Company”, “AgileThought”, “we”, “us” and “our”) under which we operate today.
Business Overview
Our mission is to fundamentally change the way people and organizations view, approach and achieve digital transformation. We help our clients transform their businesses by innovating, building, continually improving and running new technology solutions at scale. Our services enable our clients to more effectively leverage technology, optimize cost, grow, and compete.
We combine our agile-first approach with expertise in emerging technologies to discover, design, and deliver solutions that help our clients overcome the challenges of digital transformation to innovate, build, run and continually improve solutions at scale using DevOps tools and methodologies. We offer client-centric, onshore and nearshore digital transformation services that include consulting, design and user experience, custom enterprise application development, DevOps, cloud computing, mobile, data management, advanced analytics and automation expertise. Our professionals have direct industry operating expertise that allows them to understand the business context and the technology pain points that enterprises encounter. We leverage this expertise to create customized frameworks and solutions throughout clients’ digital transformation journeys. We invest in understanding the specific needs and requirements of our clients and tailor our services for them. We believe our personalized, hands-on approach allows us to demonstrate our differentiated capabilities,
1
build trust and confidence with new clients, and strengthen relationships with current ones, enabling a trusted client advisor relationship. By leveraging our AgileThought Operating Model (“ATOM”) and our industry expertise, we rapidly and predictably deliver enterprise-level software solutions at scale. Our deep expertise in next-generation technologies facilitates our ability to provide enterprise-class capabilities in key areas of digital transformation.
Industry Background
In recent years, technological advances have altered business and competitive landscapes at a pace and at a scale that is unprecedented in modern industry. The proliferation of new technologies, such as cloud computing, mobile, social media, artificial intelligence, machine learning, advanced analytics and automation delivered in an omni-channel way, and the ability to rent them as-a-service instead of acquiring them outright at significant upfront cost, have diminished the scale and infrastructure advantages of incumbent businesses. This, in turn, has enabled the rise of a new breed of companies, known as “digital disruptors,” across different industries. Digital disruptors use digital technology platforms that are essentially software applications to enable innovative ways of providing products and services to clients. Digital disruptors often differentiate themselves with their extensive expertise in developing and using software. New technologies also give customers and employees more information and choices, changing how and where they engage with enterprises.
Best-in-class software developers have also re-imagined the process of software development. Today, digital disruptors build software by deploying an agile methodology. The traditional waterfall method, premised on a sequential and siloed approach to building software, results in long development cycles, fails to integrate user feedback quickly and is often more expensive than the agile method. The agile method is user-driven and focuses on continuous delivery of small upgrades with multi-disciplinary software development teams rapidly designing, developing, testing, delivering and continually monitoring updates to software. The agile method also enables enterprises to continuously innovate and improve products and processes with greater speed than ever before.
Due to these factors, incumbent enterprises with cumbersome processes have a critical need to digitally transform their businesses in order to compete with new entrants in their markets, enhance customer experiences, drive differentiation, optimize operations and regain their competitive advantages. This requires re-imagining and re-engineering their businesses. In order to undertake digital transformation, enterprises need to devise new business strategies, alter their organizational structures and cultures, and, most importantly, modernize their technology infrastructures.
Our Opportunity
Given the diverse benefits digital transformation brings across industries, we expect the demand to remain robust, especially in key industries such as: retail, healthcare, financial services and professional services. Businesses are focused on protecting themselves from the current environment of uncertainty while making the most of any innovation and automation opportunities to scale their digital business.
Due to increased demand for artificial intelligence, cloud and analytics we expect worldwide digital transformation spending in each of the healthcare and financial services sectors to increase at an approximate 20% compounded annual growth rate, from 2022 to 2026. Additionally, the fast growing interest in Digital Twins and Robotic Process Automation-Based Claims Processing will allow us to accelerate growth in all of our key industries as the spend for each of these services are expected to grow greater than 30% during the same period.
Our Strategy
Key elements of our growth strategy include:
Expand Our Client Footprint in the United States
We are focused on growing our client footprint in the United States and furthering the application of our proven business capabilities in the U.S. market. We acquired 4th Source in 2018 and AgileThought in 2019, both of which are U.S. headquartered and operated companies. These acquisitions have consolidated our presence in the U.S. market which is projected to be the largest geographic market for Digital Transformation spending through 2026, accounting for nearly 35% of the total spending worldwide and surpassing $1.0 trillion spending in 2025. Our 2022 and 2021 revenue from U.S. clients were 63.5% and 65.2% of our total revenue, respectively.
Expand Our Client Footprint in the Latin America
2
We are also focused on growing our client footprint in Latin America and leveraging our local experience and network to capitalize on the region’s growth potential. The Latin America region is expected to experience the second strongest growth in Digital Transformation from 2022 to 2026 with a five year projected compounded annual growth rate of approximately 20%. Our business started in Mexico and we have established experience in the Latin America market since then, and we believe our experience allows us to tailor our offerings and naturally assertively approach our clients in that market. Our 2022 and 2021 revenue from Latin America clients were 36.5% and 34.8% of our total revenue, respectively.
Penetrate Existing Clients via Cross-Selling
We seek to deepen our relationships with existing clients through relation-based selling and moving ourselves to a trusted client advisor relationship. We also seek to expand wallet share by cross-selling our additional services. Our client relationships generally begin with a proof-of-concept, or a pilot, to address a specific business challenge. After this initial phase, we are able to more easily cross-sell our portfolio of services across organizations. We believe we have a successful track record of expanding our relationships with clients by offering a wide range of complementary services.
Continue to Identify and Build Competencies in Next-Generation Technologies
We are dedicated to remaining at the forefront of market trends and next-generation technologies. We intend to maintain, improve and extend our expertise and delivery capabilities across next-generation and commercially-proven technologies, in order to enhance our clients’ competitive advantage. As we continue to expand, we will remain focused on attracting engineers with next-generation technologies skill-sets, specifically cloud, predictive analytics and causality analysis, and AI, as well as continue to train and update our existing workforce through classroom, on-the-job, and online training programs in key next-generation technologies including Adobe, Appian, ServiceNow and Microsoft Azure.
Strengthen Onshore and Nearshore Delivery with Diversification in Regions
In order to drive digital transformation initiatives for our clients, we believe that we need to be near the regions in which our clients are located and in similar time zones. Our onshore and nearshore agile methodology not only facilitates efficient and reliable client communication and collaboration, but also facilitates our engineers being onsite quickly when required. We have established a strong base for our onshore and nearshore delivery model across Mexico, and we also have offices in Argentina, Brazil and the United States in order to source diverse talent and be responsive to clients in our core markets. We have strategically located our onshore and nearshore delivery centers in areas that are desirable for employees to live, have ample access to innovative technical and industry-experienced talent pools, and have lower IT recruiting competition. One of the positive outcomes of the COVID-19 pandemic has been that we have further proven our leading agile delivery capabilities via distributed teams working remotely. This outcome has broadened our capacity to attract and recruit talent located in cities different from where our delivery centers are currently located. As we continue to grow our relationships, we will keep looking for the best talent to expand our footprint in other cities in Mexico as well as other countries.
Attract, Train, Retain and Utilize Highly Skilled Employees
We believe attracting, training, retaining and utilizing highly skilled employees with capabilities in next-generation technologies is key to our success. Historically, we have relied primarily on hiring experienced employees to meet our demand for talent. Today, we are focused on growing our workforce through university recruiting. University recruiting helps us diversify our talent base, build-out our delivery capabilities and lower our overall delivery costs. Our strategy is to grow our university recruiting program in Mexico, which is one of the top countries in the world in terms of the number of engineering, math and science graduates along with opening offices in other countries in Latin America with similar time zones in order to attract local graduates.
Selectively Pursue Tuck-in Acquisitions
We have historically pursued acquisitions that expanded our services capabilities, vertical expertise and onshore and nearshore footprint. For example, our acquisition of AgileThought in July 2019 expanded our client base and delivery capabilities in the United States and significantly enhanced our consulting, agile coaching, design and agile software development capabilities. We have a track record of successfully identifying and seamlessly integrating acquired companies into our core business. We plan to selectively pursue “tuck-in” transactions in the future that will help us augment our capabilities, establish new and deeper client relationships, and expand our cross-selling opportunities.
Our Strengths
We believe the following strengths differentiate us in the marketplace:
3
Agile-First Capabilities
We embody an agile-first culture that drives us to provide a range of IT services and business solutions to our clients. By leveraging our AgileThought Scaled Framework and our deep industry expertise, we rapidly and predictably deliver enterprise-level software solutions at scale. We coach our clients, including senior leadership, on the critical role they need to play to enable the successful adoption of agile development practices. Our services span across the entire application lifecycle. We help our clients innovate, build, run and continually improve new technology solutions at scale.
Domain Expertise in Attractive, High Growth, Large Addressable Markets
We have expertise in industry verticals with large and growing addressable markets for our services. Currently, we have strong expertise in healthcare, professional services, financial services, consumer packaged goods and retail, and industrial services. We focus on verticals where we can leverage our industry knowledge with next-generation technologies to build new technology applications and drive the digital transformation of clients’ technology infrastructure. Many of our executives have direct industry operating experience that allows them to understand the business context and the technology pain points that enterprises encounter.
Customized, Client-Centric Approach
We believe our client-centric approach is a key competitive advantage. We invest in understanding the specific needs and requirements of our clients and tailor our services for them. We believe our customized, hands-on approach allows us to demonstrate our differentiated capabilities and build trust and confidence with new clients and strengthen relationships with current ones, enabling a trusted client advisor relationship status.
Enterprise-Class Expertise in Next-Generation IT Services
Our deep expertise in next-generation technologies facilitates our ability to provide enterprise-class capabilities in key areas of digital transformation. Our expertise extends to technologies in omni-channel commerce and content management, data management, business intelligence (BI), machine learning (ML), and artificial intelligence (AI). We have built strategic relationships with key vendors in next-generation technologies. We invest in employee training in the latest technologies that are deployed broadly throughout enterprises.
Expertise in Leveraging Existing Technology Systems to Enable Digital Transformation
Digital transformation is a holistic process orchestrating the intersection of next-generation technology, human capital, and a firm’s existing technology investments while unlocking the data siloed therein. By constructing digital platforms that are enriched by existing investments, we are able to rapidly overlay new domain models enabling our client’s workforce to focus on high value work and pivot to new business models not afforded by legacy systems. Tactically, we believe this allows accelerated time to market and encourages a feedback loop informing long term investments. As an organization’s digital strategy evolves, and when justified by business drivers, the legacy applications can be modernized to compete in the new digital ecosystem.
When constructing digital platforms for our clients, we incorporate technologies including telemetry capture, API management, and application insights with legacy technology systems. Telemetry capture allows the platform to understand how it is being utilized by end users and what their experience is. API management allows us to understand application consumption across business units and lines of service. Application insights support platform scaling and predictive consumption models. These cross functional capabilities extend to all components of the digital platform and allow informed business decisions on when and if legacy systems should be modernized and where our client’s future investments will yield the highest return.
By taking a human-first approach to digital transformation, we help our clients maximize existing investments while building an informed strategic future on next-generation technologies.
Values and Culture
Our employees are our greatest asset. We have built a culture of empowerment that allows employees to be entrepreneurial and nimble. This culture, combined with strong and pragmatic management oversight and processes, institutional goals and defined key performance metrics, form the basis of our value system. We believe our culture and value system are paramount to best serving our clients.
4
The culture we have built allows us to rapidly absorb organizations we acquire by identifying and integrating the best of their processes and empowering their people to grow within our larger organization. We believe our strong culture and overarching values system have led to our successful track record of acquisitions. The ability to assimilate ideas and retain people differentiates us as a potential acquirer for entrepreneurs and employees seeking a larger platform to grow their businesses.
Our Services
We offer client-centric, onshore and nearshore end-to-end digital transformation services that help our clients aim higher through their digital ambitions by innovating with them and building solutions and applications. Our services are delivered through our three dimensions of transformation — Discover, Design, and Deliver:
Discover
We begin by partnering with your stakeholders and engineering leadership to carefully analyze our client’s data to better understand their goals and challenges. We believe our specialized understanding of complex software engineering problems enables us to share agile approaches to closing the gaps and driving results.
Design
We believe that building solutions begins with empathy and design thinking. We seek to understand a client’s end customer goals and quickly design digital solutions that will deliver on the key outcomes using data and data science aimed to improve business in weeks, not months.
Deliver
We seek to deploy our Agile Thinkers in clients’ preferred time zones because we believe solving critical business challenges that accelerate client value needs to happen in real time. Our over 2,500 Agile Thinkers are on a mission to deliver enterprise software projects in timeframes that surprise and delight.
Our Guild Model
Technology continues to advance at a faster pace than it ever has before. Driving these changes are consistent innovations in software engineering and methodologies. At AgileThought, we are passionate about our craft and seek to foster continuous growth and technical understanding in all our employees.
To help create the environment necessary for continuous improvement and learning, we have developed a unique guild model. Our guild model offers our consultants a clear path to further career growth paired with the mentorship, with a goal to deliver successfully in client engagement.
Going beyond the Center of Excellence model, our guilds are grouped around areas which align our technical staff on core competencies and skills, backed by skilled practitioners and surrounded by a network of friends fluent in each technical area to whom they can seek input and further their understanding.
Agility Guild
The Agility Guild’s goal is to inspire and advise the enterprise to new heights of thinking, behaving, and decision making. We aim to transform organizations and digital products by consulting, coaching, and training using innovative approaches like Agile, DevOps, Design Thinking, and Project Management.
Design & Product Guild
The Design & Product Guild’s goal is to help our clients create great customer experiences. We aim to ensure that our clients’ product strategy aligns with their company vision.
Data & AI Guild
5
The Data & AI Guild’s goal is to help clients digitally reimagine Intelligent Businesses, using an AI-first, human-centric, and platform-driven approach. Our AI-Drive Digital Transformation program spans real and synthetic data, digital surrogates, and field implementation.
Enterprise Solution Guild
The Enterprise Solutions Guild focuses on providing the best-added value to our customers through excellence in the timely delivery of business apps and related services, by striving to incorporate the best industry practices, under a culture of innovation, practical solutions, and optimizing Time-to-Value.
Front-End Engineering Guild
The Front-End Engineering Guild strives to help our clients digitally convert their design concepts and ideas into reality by creating a human interface that users will find user-friendly and enjoy using.
Backend Engineering Guild
With technology innovation in mind, the Backend Engineering Guild seeks to help organizations digitally transform by creating exceptional backend platforms and leveraging cloud technology.
Cloud & Security Guild
The Cloud-Ops & Security Guild focuses on the cloud, elastic capabilities, and new technologies that increase the availability of our clients' solutions. Helping our clients safely design, migrate, assess, secure, optimize and manage their cloud assets is this guild’s core mission.
Quality Guild
The Quality Guild focuses on developing and implementing testing best practices within our software development lifecycle which will allow us the ability to produce high-quality processes and products in which we serve our customers.
Our Industry Model
In addition to our Guild Model, we focus our market units around their industry expertise.
Banking and Financial Services Industry
Our extensive history in the banking and financial services industry is part of the foundation of our company. We work with several of the biggest banks in the world and help them with their digital transformation, from online and mobile banking, investment platforms, digital wallets, payment processing, and a suite of other services.
Healthcare
It is critical to have a sense of trust in your partners within the healthcare industry — the wrong mistake can have real impacts on the lives of real people. That’s why we take pride in our partnerships with some of the largest names in the healthcare industry. They rely on us to have a strong understanding of industry laws & regulations and how we take that into account when creating digital solutions around telemedicine, remote monitoring, electronic health records (EHRs), and patient engagement tools.
Professional Services
The professional services world of audit, advisory, and tax services is a very specialized place, and knowledge of the unique and evolving regulations of global jurisdictions is a must for any partner in the space. We help the professional services world to streamline audit processes and improve accuracy, leveraging machine learning and other advanced technologies to analyze vast amounts of financial data and identify patterns and trends that can help clients optimize their financial performance.
Media & Entertainment
6
People are invested in their movies, shows, music, and games now more than ever, and they set a high bar in the quality of the experience that they expect. We help companies in the Media & Entertainment space to create those experiences, from streaming, big data and machine learning algorithms, managed services, product design, and more.
Retail and Manufacturing
Supply chain management, pricing strategies, seasonal fluctuations, physical storefronts — these are all complex aspects of retail and manufacturing that we believe all benefit from our experience in doing digital transformations in this industry. AgileThought works with some of the world’s top retail brands to elevate customer experiences, build stronger data practices, and increase operational resiliency across value chains.
Our Delivery Model
We use a combination of onshore and nearshore delivery to provide digital transformation services to our clients. We believe our onshore and nearshore model also allows us to quickly travel to our clients’ locations when required. In addition, our ability to collaborate remotely in similar time zones was designed to propel our productivity and further enhances our agile delivery.
As of December 31, 2022, we had 5 delivery centers across United States, Mexico and South America. In addition, we have delivery employees at client locations in Argentina, Brazil, Mexico and United States.
Quality and Process Management
We deploy industry standard quality and process management methodologies to guarantee our delivery process for our clients. We are ISO CMMI N3-certified, to help ensure secure and timely delivery of our digital product development services.
Sales and Marketing
Our sales and marketing strategy is focused on a client-centric operating model that seeks to drive revenue growth from new client acquisitions and expanding relationships with existing clients. Our approach to marketing is based on Account-Based Marketing, or ABM, which provides us with a targeted demand generation approach for our marketing campaigns. Through ABM we focus on key accounts and our ideal customer profile, creating targeted content and campaigns.
Our sales and marketing organization is primarily located in Mexico City and throughout the United States. Our team of marketing professionals actively promotes our thought leadership, brand and capabilities through a variety of digital channels which includes our website, blogs, digital events such as podcasts and webinars, various social media platforms, participation in technology conferences through speaking engagements and sponsorships, and technology industry research briefings with industry analysts.
Our Customers
We focus on enterprise clients based in the United States and Latin America. Our clients operate across a broad range of industries, including the healthcare, professional services, financial services, consumer packaged goods, retail, and industrial services industries. As of December 31, 2022, we had 137 active clients across the United States and Latin America, defined as clients from whom we generated revenue over the prior 12 months.
Our largest client in 2022 accounted for 14.9% of total revenue. Our second and third largest clients in 2022 accounted for 9.2% and 7.4% revenue in 2022, respectively. Our largest client in 2021 accounted for 13.0% of total revenue. Our second and third largest clients in 2021 accounted for 9.6% and 9.5% of our total revenue, respectively.
Competition
We are a strong provider of digital transformation services in North America. We believe we are well positioned to compete effectively due to our ability to combine our agile-first approach with expertise in next-generation technologies and our clients’ existing technology investments and our onshore and nearshore delivery capabilities.
Our competitors include:
7
•Next-generation IT services providers such as Endava Plc, EPAM Systems, Inc., Grid Dynamics and Globant S.A.;
•Large global consulting and traditional global IT services companies such as Accenture plc, Capgemini SE, Cognizant Technology Solutions Corporation, and IBM; and,
•In-house IT and product development departments of our existing and potential clients.
Human Capital and Employees
We strive to foster a culture of empowerment that allows employees to be entrepreneurial and nimble. We provide services from onshore and nearshore delivery locations to facilitate increased interaction, responsiveness and close-proximity collaboration, which are necessary to deliver agile services. As of December 31, 2022, we had an aggregate of 1,692 delivery and consulting employees in Mexico, representing 78.9% of our total of 2,144 delivery and consulting employees. Our onshore delivery centers in the United States employed 181 delivery and consulting employees as of December 31, 2022, and our nearshore delivery centers in Brazil and Argentina employed 240 delivery and consulting employees as of December 31, 2022. As of December 31, 2022 we had 2,504 employees.
Attract
We recognize that our ability to grow our business is dependent on our ability to attract and retain talent and industry-experienced professionals. We have primarily relied on hiring employees with prior relevant experience. We also hire from university campuses. We have leveraged our management team’s extensive knowledge of Mexico in strategically placing our delivery operations in locations such as Merida and Colima that have high concentrations of universities with engineering graduates, attractive cost structure, desirable living attributes and low employee turnover.
Train and Retain
We invest in training our employees and offer regular technical and language training as well as other professional advancement programs. Our training includes programs dedicated to enhance our employees’ abilities and includes language proficiency courses, an Analytics-focused three-week academy and a two-week condensed Agile Boot Camp program. Additionally, during 2020 we launched our “AT University” program, currently ongoing, which is a program that focuses on providing continuous training tools to our employees through online courses and in-house training in both technical and soft-skill topics. These programs not only help ensure our employees are well trained and knowledgeable, but also help enhance employee retention.
We believe our ability to attract and retain talent is further enhanced by our strategic placement of our onshore and nearshore delivery centers in areas that are desirable for employees to live, have ample access to innovative technical and industry-experienced talent pools, and have reduced IT recruiting competition. Additionally, the work-from-home, or WFH, modality that was implemented during the COVID-19 pandemic has created two benefits for our ability to attract and retain talent. First, the ability of our distributed teams to effectively WFH for our clients has led us to search for and hire talented professionals outside the cities where we have our delivery centers, providing greater employment opportunities with us to individuals that would otherwise have had to relocate and reducing potential effects on our business from region-related attrition. Second, WFH has also reduced commuting and increased family and personal time for many individuals, which management believes has resulted in higher employee satisfaction which we anticipate translating into higher retention rates.
Intellectual Property
Our ability to obtain, maintain, protect, defend and enforce our intellectual property is important to our success. We rely on intellectual property laws in the U.S. and certain other jurisdictions, as well as confidentiality procedures and contractual restrictions, to protect our intellectual property. We own or have applied for registration of various trademarks, service marks and trade names that we believe are important to our business.
Despite our efforts to obtain, maintain, protect, defend and enforce our trademarks, service marks and other intellectual property rights, our trademarks, service marks or other intellectual property rights could be challenged, invalidated, declared generic, circumvented, infringed or otherwise violated. Opposition or cancellation proceedings have in the past and may in the future be filed against our trademark or service mark applications and registrations, and our trademarks and service marks may not survive such proceedings. Additionally, although we take reasonable steps to safeguard our trade
8
secrets, trade secrets can be difficult to protect, and others may independently discover our trade secrets and other confidential information. We seek to protect our trade secrets and proprietary information, in part, by executing confidentiality and invention assignment agreements with our employees, contractors and other third parties. The confidentiality agreements we enter into are designed to protect our trade secrets and proprietary information, and the agreements or clauses requiring assignment of inventions to us are designed to grant us ownership of all intellectual property and technology that the applicable counterparties develop in connection with their work for us. We cannot guarantee, however, that we have executed such agreements with all applicable counterparties, such agreements will not be breached or that these agreements will afford us adequate protection of our intellectual property, trade secrets and proprietary rights. From time to time, legal action by us may be necessary to enforce or protect our intellectual property rights or to determine the validity and scope of the intellectual property rights of others, and we may also be required from time to time to defend against third-party claims of infringement, misappropriation, other violation or invalidity.
Regulations
Due to the industry and geographic diversity of our operations and services, our operations are subject to a variety of laws and regulations in the United States, Mexico, Costa Rica, Brazil and Argentina. See Item 1A, “Risk Factors—We are subject to stringent and changing regulatory, legislative and industry standard developments regarding privacy and data security matters, which could adversely affect our ability to conduct our business.”
Corporate Information
Our principal executive offices are located at 222 W. Las Colinas Blvd. Suite 1650E, Irving, Texas 75039, and our telephone number is (971) 501-1440. Our corporate website address is www.agilethought.com.
Available Information
We are subject to the information and reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and, accordingly, file Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, with the Securities and Exchange Commission (the “SEC”).
We maintain a website at www.agilethought.com, to which we regularly post copies of our press releases as well as additional information about us. Our filings with the SEC will be available free of charge through the website as soon as reasonably practicable after being electronically filed with or furnished to the SEC. The information on or that can be accessed through our website is not a part of this Annual Report on Form 10-K or incorporated by reference into any other filings we make with the SEC.
9
Item 1A. Risk Factors
RISK FACTORS
We are subject to various risks and uncertainties, which could adversely affect our business, prospects, operating results, cash flows and financial condition and the trading price of our Class A Common Stock (“common stock”). You should carefully consider the risks and uncertainties described below together with all of the other information contained in this annual report on Form 10-K, including our financial statements and related notes and in the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” These risks and uncertainties are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business.
Risks Related to Our Financial Position and Need for Additional Capital
We do not have sufficient cash flows from operating activities to service our substantial amount of indebtedness and other obligations, which could have a material adverse effect on our business, financial condition, results of operations and prospects.
We have a substantial amount of indebtedness and related obligations and do not currently have sufficient available cash flows to service upcoming payment commitments. In addition, we may not have sufficient cash flows or assets to repay such debt and related obligations in full when due. Our total indebtedness and related obligations as of February 28, 2023 was $99.2 million, including (1) $63.5 million under our financing agreement (the “Blue Torch Credit Facility”) by and among the Company, AN Global LLC, certain subsidiaries of the Company, as guarantors, the financial institutions party thereto as lenders (the “Blue Torch Lenders”), and Blue Torch Finance LLC (“Blue Torch”), as the administrative agent and collateral agent, and (2) $19.4 million under our credit agreement (the “Second Lien Facility”), by and among AT, AN Extend, S.A. de C.V., AN Global LLC, certain other loan parties party thereto, financial institutions affiliated with Credit Suisse and Nexxus Capital, Manuel Senderos and Kevin Johnston, as lenders (the “Second Lien Lenders”), GLAS USA LLC, as administrative agent, and GLAS Americas LLC, as collateral agent, but not including an additional paid in kind fee of $0.5 million added to the Blue Torch Credit Facility as of March 9, 2023.
We have agreed to pay approximately $34.0 million of our total indebtedness and related obligations in 2023, including principal payments of $15.0 million by April 15, 2023, $20.0 million by June 15, 2023 (inclusive of the $15.0 million by April 15, 2023 if not paid by then) and $25.0 million by September 15, 2023 (inclusive of the $20.0 million by June 15, 2023 if not paid by then) to the Blue Torch Lenders. Our failure to repay any of these amounts will be an event of default under the Blue Torch Credit Facility. However, any such event of default related to the April 15, 2023, June 15, 2023, or September 15, 2023 payments will not result in Blue Torch’s ability to accelerate any indebtedness under the Blue Torch Credit Facility but will result in us owing Blue Torch additional paid in kind fees in the amounts of $4.0 million, $2.0 million and $3.0 million, respectively, which will be added to the outstanding principal amount of the loan. If the Company meets these payments timely, no fees will be incurred. We are also required to make quarterly payments to the Blue Torch Lenders of approximately $0.7 million starting December 31, 2023 and a payment default related to those quarterly payments would allow Blue Torch to accelerate all indebtedness under the Blue Torch Credit Facility.
As described in the following risk factor, we also have certain other payment obligations, including for subordinated indebtedness, that we may not pay unless we comply with covenants in the Blue Torch Credit Facility and the Second Lien Facility. Our failure to pay these other obligations would be a default under the terms of those obligations and, in limited circumstances, a cross-default that would allow Blue Torch and the Second Lien Lenders to accelerate any and all indebtedness owed to them.
We have also entered into arrangements with certain suppliers and vendors, or are negotiating such arrangements, under which we paid or will agree to pay such counterparties on a deferred basis in order to manage our cash flows. Some of these agreements are related to material contracts under the terms of the Blue Torch Credit Facility and the Second Lien Facility and are agreements that we rely on to operate our business. If we are unable to negotiate such deferred payments, our counterparties could terminate these contracts. We may not be able to replace these contracts on terms that are acceptable to us or at all and would remain liable for the defaulted payments, which could have a material adverse effect on our business, financial condition, results of operations and prospects.
We do not have sufficient cash flows from operating activities and need to raise additional capital to service our debt and other obligations. Our ability to make payments on our indebtedness and other obligations depends on our ability to
10
raise additional capital and on our results of operations, cash flows and financial condition, which in turn are all subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control. We may not be able to raise such additional capital and maintain a level of cash flows from operating activities sufficient to pay the principal, premium, if any, and interest on our indebtedness and to pay our other obligations.
In addition, if we are unable to repay, refinance or restructure our indebtedness when payment is due, the lenders could proceed against any collateral granted to them to secure such indebtedness or force us into bankruptcy or liquidation. In any of these circumstances, our business, financial condition, results of operations and prospects would be materially adversely affected.
See Management’s Discussion and Analysis - Liquidity and Capital Resources, for further information about our existing indebtedness and related obligations.
Provisions of our senior credit agreements restrict our ability to pay certain of our other obligations, including subordinated indebtedness, and our inability to pay or modify the payment terms of such obligations would result in events of default, which could have a material adverse effect on us.
The Blue Torch Credit Facility and the Second Lien Facility restrict our ability to pay certain of our other obligations, including $3.5 million in deferred fees (the “Monroe Deferred Fees”) due to the lenders under our prior first lien credit facility on May 25, 2023, $1.6 million due to Exitus Capital, S.A.P.I. de C.V., SOFOM, E.N.R. (“Exitus Capital) on July 27, 2023 and $0.9 million due to AGS Group LLC (“AGS Group”) on March 31, 2023 unless we satisfy certain conditions, including that no event of default has occurred and is continuing. We may not repay the Monroe Deferred Fees or AGS Group unless our leverage ratio is 3.00 to 1.00 or less or 2.50 to 1.00 or less, respectively, and we are in compliance with all financial covenants. We may not repay Exitus Capital unless we have repaid Blue Torch an aggregate principal $15.0 million and $20.0 million by April 15, 2023 and June 15, 2023, respectively.
Our failure to pay any of these amounts would be a payment default under the terms of those agreements, which would allow Exitus Capital to accelerate the amount due under its loan or allow Monroe to seek to enforce our obligation to repay the Monroe Deferred Fees. In addition, our failure to pay the indebtedness due to Exitus Capital will be a cross-default under both the Blue Torch Credit Facility and Second Lien Facility, but would not allow either of the Blue Torch or Second Lien Lenders to accelerate indebtedness due under their respective loans unless Exitus Capital accelerates the amounts due to it.
To avoid these defaults, we need to raise additional capital and reduce our leverage ratio to service these obligations. We do not believe we will be able to reduce our leverage ratio in order to pay the indebtedness due to AGS Group on March 31, 2023 or the Monroe Deferred Fees due on May 25, 2023 and therefore need to revise the terms of these obligations. Any such revisions may be subject to the prior consent of Blue Torch and the Second Lien Lenders. We cannot provide any assurance that we will be able to timely revise these obligations on commercially acceptable terms or at all or that Blue Torch and the Second Lien Lenders will consent to such revisions. Our failure to revise these obligations or receive such consents would result in events of default that, if not cured or waived, would have a material adverse effect on us.
We need additional capital, and failure to raise additional capital on terms favorable to us, or at all, would limit our ability to meet our debt and other obligations and have a material adverse effect on our business, financial condition, results of operations and prospects.
In order to meet our obligations, we must raise additional capital and may be required to adopt one or more alternatives, such as refinancing or restructuring indebtedness or selling material assets or operations. However, there can be no assurance that we will be able to raise additional capital or that we will be successful in one or more of these other options.
If we raise additional capital through the issuance of equity or debt securities, those securities may have rights, preferences, or privileges senior to the rights of our common stock. If we raise additional capital through equity, our existing stockholders will experience dilution and such dilution could be substantial. If we need to refinance all or part of our indebtedness at or before maturity, there can be no assurance that we will be able to obtain new financing or to refinance any of our indebtedness on commercially reasonable terms or at all. The refinancing of our existing indebtedness or incurrence of additional indebtedness could result in increased debt service obligations and could require us to agree to
11
operating and financing covenants that would further restrict our operations, and the instruments governing such indebtedness could contain provisions that are as or more restrictive than our existing debt instruments.
We may also require additional cash resources due to changed business conditions or other future developments, including our growth initiatives and any investments or acquisitions we may decide to pursue, or to refinance our existing indebtedness.
Our ability to obtain additional capital on acceptable terms is subject to a variety of uncertainties, including conditions in the capital markets in which we may seek to raise funds, our results of operations and financial condition, the terms of our credit facilities, investors’ perception of, and demand for, securities of IT services companies and general economic and political conditions. Financing may not be available in amounts or on terms acceptable to us, or at all. If we are not able to meet our commitments for any reason, our creditors could seek to enforce remedies against us, including actions to put us into bankruptcy proceedings or receivership, any of which could have a material adverse effect on our business, financial condition, results of operations and prospects.
Our level of indebtedness has affected our ability to obtain financing or refinance our existing indebtedness, reduces available cash flow for operations and limits our ability to complete certain transactions necessary for growth of our business.
Our level of indebtedness has affected our ability to obtain financing or refinance existing indebtedness and requires us to dedicate a significant portion of our cash flow from operations to interest and principal payments on indebtedness, thereby reducing the availability of cash flow to fund working capital, capital expenditures, growth initiatives and other general corporate purposes.
In addition, the Blue Torch Credit Facility is secured by substantially all of our assets and will require us, and any debt instruments we may enter into in the future may require us, to comply with various covenants that limit our ability to, among other things:
•dispose of assets;
•complete mergers or acquisitions;
•incur or guarantee indebtedness;
•sell or encumber certain assets;
•pay dividends or make other distributions to holders of our shares;
•make specified investments;
•engage in different lines of business; and
•engage in certain transactions with affiliates.
These limitations limit our ability to complete certain transactions necessary for the growth of our business and also increase our vulnerability to adverse general economic, industry or competitive developments or conditions and limit our flexibility in planning for, or reacting to, changes in its businesses and the industries in which we operate or in pursuing our strategic objectives
Our cost reduction initiatives may not deliver the expected results and could disrupt our business.
We have implemented cost reduction initiatives for the purpose of reducing selling, general and administrative expenses, streamlining our operations and increasing cash flows from operations. Such reductions may include reducing non-revenue generating headcount, consolidating certain operations and reducing other expenditures. We plan to continue to manage costs to better and more efficiently manage our business.
Such initiatives may not be successful and could adversely impact our business in other ways, including delaying the completion of certain business processes, impacting our ability to react swiftly to changes in our industry or affecting employee retention or morale. If we do not fully realize or maintain the anticipated benefits of cost reduction initiatives or if such benefits are offset by additional costs, our business, financial condition, results of operations and prospects could be adversely affected, and additional cost reduction initiatives or restructuring actions may be necessary.
We have not complied, and may not in the future, be able to comply with the financial covenants in our credit agreements, which have resulted, and may result, in events of default.
12
Under the terms of the Blue Torch Credit Facility and the Second Lien Facility, we are required to comply with total leverage ratio, liquidity, accounts payable and other covenants, including providing financial information to our lenders at specified times. Our ability to meet these ratios and covenants can be affected by events beyond our control. We have not always met these ratios and covenants in the past and have had to obtain waivers and consents from the lenders and amend our credit agreements to adjust the ratios and covenants so that we could remain in compliance.
For example, we have had to enter into amendments to our prior first lien credit facility, the Blue Torch Credit Facility and the Second Lien Facility on multiple occasions to reset the total leverage ratio, the fixed charge coverage ratio and the liquidity, accounts payable and other covenants in such agreements. See Management’s Discussion and Analysis - Liquidity and Capital Resources, for further information.
We may not meet these ratios and covenants in the future. A failure by us to comply with the ratios or covenants contained in our credit agreements could result in an event of default, which could adversely affect our ability to respond to changes in our business and manage our operations. Upon the occurrence of an event of default under the terms of our credit agreements, including the occurrence of a material adverse change, the lenders could elect to declare any amounts outstanding to be due and payable and exercise other remedies.
We have not had, and may not have, sufficient cash flows from operating activities, cash on hand and available borrowings under current or new credit arrangements to satisfy earnout obligations in connection with prior acquisitions.
In connection with prior acquisitions, we are required to make earnout payments to the sellers if certain metrics relating to the acquired businesses have been achieved. As of December 31, 2022, we had accrued $10.2 million in earnout payments as liabilities that we owe in connection with prior acquisitions. The earnout obligation is related to two prior acquisitions of AN Extend and AgileThought LLC with a total liability of $2.4 million and $7.8 million, respectively. The AN Extend and AgileThought LLC obligation accrues interest at a rate of 11% and 12% respectively. In order for us to make those earnout payments, in addition to having sufficient cash resources to make the payments themselves, we must be in pro forma compliance after giving effect to the earnout payments with liquidity and other financial and other covenants included in the Blue Torch Credit Facility and the Second Lien Facility. We have not been able to satisfy those covenants to date in connection with the accrued earnout payments. If we are unable to satisfy those covenants, and the Blue Torch Credit Facility and the Second Lien Facility remain outstanding, or if we otherwise have insufficient cash flows from operating activities, cash on hand or access to borrowed funds, we will be unable to make the accrued earnout payments. As long as such accrued earnout payments remain outstanding, they will continue to accrue interest that is added to the principal amount of the earnout payment, further increasing our payment obligations to third parties.
On November 15, 2022, the Company entered into an amendment to change the terms of the AN Extend purchase price obligation note payable. The amendment converted the note from Mexican pesos to U.S. dollars with additional principal added, changed the applicable interest to 11% annually, and set a maturity date of November 15, 2023. If the note is not paid in full by the maturity date, the total amount of principal and the interest will be converted within the following 30 calendar days into shares of our common stock, based on the Volume Weighted Moving Average Price of our common stock on Nasdaq.
There can be no assurance that in the event we are unable to make any such earnout payments, the sellers will not seek legal action against us, which could materially adversely affect our business, financial condition, results of operations and prospects.
We may not have, sufficient cash flows from operating activities, cash on hand and available borrowings under current or new credit arrangements to finance required capital expenditures and other costs under new contracts.
Our business generally requires significant upfront working capital and/or capital expenditures for software customization and implementation, systems and equipment installation and telecommunications configuration. In connection with the signing or renewal of a service contract, a customer may seek to obtain new equipment or impose new service requirements, which may require additional capital expenditures or other costs in order to enter into or retain the contract. Historically, we have funded these upfront costs through cash flows generated from operations, available cash on hand and borrowings under our credit agreements.
In addition, since we currently utilize third-party consultants to deliver a large portion of our services, we may incur upfront costs (which may be significant) prior to receipt of any revenue under such arrangements. Our ability to generate
13
revenue and to continue to procure new contracts will depend on, among other things, our then present liquidity levels or our ability to obtain additional financing on commercially reasonable terms.
If we do not have adequate liquidity or are unable to obtain financing for these upfront costs on favorable terms or at all, we may not be able to pursue certain contracts, which could result in the loss of business or restrict the ability to grow. Moreover, we may not realize the return on investment that we anticipate on new or renewed contracts due to a variety of factors, including lower than anticipated scope of or expansion in the services we provide to the applicable clients under the contracts, higher than anticipated capital or operating expenses and unanticipated regulatory developments or litigation. We may not have adequate liquidity to pursue other aspects of our strategy, including increasing our sales activities directed at the U.S. market or pursuing acquisitions. In the event we pursue significant acquisitions or other expansion opportunities, we may need to raise additional capital either through the public or private issuance of equity or debt securities, by entering into new credit facilities, which sources of funds may not necessarily be available on acceptable terms, if at all.
We have significant fixed costs related to lease facilities.
We have made and continue to make significant contractual commitments related to our leased facilities. Our operating and finance lease expense related to land and buildings for the year ended December 31, 2022 was $1.9 million, and for the year ended December 31, 2021 was $3.8 million, net of reimbursements. These expenses will have a significant impact on our fixed costs, and if we are unable to grow our business and revenue proportionately, our operating results may be negatively affected.
Risks Related to Our Business and Industry
We are dependent on our largest clients, and if we fail to maintain these relationships or successfully obtain new engagements, we may not achieve our revenue growth and other financial goals.
Historically, a significant percentage of our annual revenue has come from our existing client base. For example, during 2020 and 2019, 92.5% and 77.5% of our revenue came from clients from whom we also generated revenue during the prior fiscal year, respectively. On a pro forma basis, giving effect of the AgileThought LLC acquisition as if it had occurred since January 1, 2018, 93.5% and 97.1% of our revenue during 2020 and 2019 came from clients from whom we also generated revenue during the prior fiscal year respectively. However, the volume of work performed for a specific client is likely to vary from year to year, especially since we generally do not have long-term contractual commitments from our clients and are often not our clients’ exclusive IT services provider. A major client in one year may not provide the same level of revenue for us in any subsequent year. Further, one or more of our significant clients could be acquired, and there can be no assurance that the acquirer would choose to use our services to the same degree as previously, if at all. Our largest client for each of the years ended December 31, 2022 and 2021 accounted for 14.9% and 13.0% of our revenue, respectively, and our ten largest clients for the years ended December 31, 2022 and 2021 accounted for 61.4% and 65.1% of our revenue, respectively.
In addition, the services we provide to our clients, and the revenue and income from those services, may decline or vary as the type and quantity of services we provide changes over time. In addition, our reliance on any individual client for a significant portion of our revenue may give that client a certain degree of pricing leverage against us when re-negotiating contracts and terms of service. In order to successfully perform and market our services, we must establish and maintain multi-year, close relationships with our clients and develop a thorough understanding of their businesses. Our ability to maintain these close relationships is essential to the growth and profitability of our business. If we fail to maintain these relationships or successfully obtain new engagements from our existing clients, we may not achieve our revenue growth and other financial goals.
We generally do not have long-term contractual commitments from our clients, and our clients may terminate engagements before completion or choose not to enter into new engagements with us.
We generally do not have long-term contractual commitments with our clients. Our clients can terminate many of our master services agreements and work orders with or without cause, in some cases subject only to 30 days’ prior notice in the case of termination without cause. Although a substantial majority of our revenue is typically generated from existing clients, our engagements with our clients are typically for projects that are singular in nature. Large and complex projects may involve multiple engagements or stages, and a client may choose not to retain us for additional stages or may cancel or delay additional planned engagements.
14
Even if we successfully deliver on contracted services and maintain close relationships with our clients, a number of factors outside of our control could cause the loss of or reduction in business or revenue from our existing clients. These factors include, among other things:
•the business or financial condition of that client or the economy generally;
•a change in strategic priorities of that client, resulting in a reduced level of spending on IT services;
•changes in the personnel at our clients who are responsible for procurement of IT services or with whom we primarily interact;
•a demand for price reductions by that client;
•mergers, acquisitions or significant corporate restructurings involving that client; and
•a decision by that client to move work in-house or to one or more of our competitors.
The loss or diminution in business from any of our major clients could have a material adverse effect on our business, financial condition, results of operations and prospects. The ability of our clients to terminate agreements exacerbates the uncertainty of our future revenue. We may not be able to replace any client that elects to terminate or not renew its contract with us. Further, terminations or delays in engagements may make it difficult to plan our project resource requirements.
We may not be able to recover or sustain our revenue growth rate consistent with the rate prior to COVID-19 pandemic.
Prior to the COVID-19 pandemic, our revenue increased by 57.2% from $110.5 million in the year ended December 31, 2018 to $173.7 million in the year ended December 31, 2019. Our business was adversely affected by the COVID-19 pandemic, and we experienced a decline in our revenue from $173.7 million in the year ended December 31, 2019 to $164.0 million in the year ended December 31, 2020 to $158.7 million in the year ended December 31, 2021. We may not be able to recover our revenue growth consistent with the rate prior to the COVID-19 pandemic or at all. You should not consider our revenue growth in periods prior to the COVID-19 pandemic as indicative of our future performance. As we seek to grow our business, our future revenue growth rate may be impacted by a number of factors, such as fluctuations in demand for our services, increasing competition, rising wages in the markets in which we operate, difficulties in integrating acquired companies, decreasing growth of our overall market, our inability to engage and retain a sufficient number of information technology, or IT, professionals or otherwise scale our business or our failure, for any reason, to capitalize on growth opportunities, and our business, financial condition, results of operations and prospects may be adversely affected
The COVID-19, pandemic impacted demand for our services and disrupted our operations and may continue to do so.
The COVID-19 outbreak is as a serious threat to the health and economic well-being of our customers, employees, and the overall economy. Since the beginning of the outbreak, many countries and states have taken dramatic action including, without limitation, ordering all non-essential workers to stay home, mandating the closure of schools and non-essential business premises and imposing isolation measures on large portions of the population. Measures taken in response to the COVID-19 pandemic have had serious adverse impacts on domestic and foreign economies and the severity and the duration of these impacts are still being analyzed. The effectiveness of economic stabilization efforts continue to be uncertain and many economists have predicted extended local or global recessions.
The COVID-19 pandemic had a significant impact on several of our customers during 2021, as several larger customers either postponed projects or developed or undertook internal technology initiatives instead of using our services to do so. This adversely affected and may continue to adversely affect our opportunities for growth, whether through an increase in business or through acquisitions. The effects of the COVID-19 pandemic and measures taken in response to the pandemic in the global financial markets has also reduced our ability to access capital and could continue to negatively affect our liquidity position. This financial uncertainty may also negatively impact pricing for our services or cause our clients to again reduce or postpone their technology spending significantly and/or in the long-term, which may, in turn, lower the demand for our services and negatively affect our revenue, profitability and cash flows, and our business, financial condition, results of operations and prospects may be adversely affected.
In addition, to the extent the ongoing risks adversely affect our business, financial condition, results of operations and prospects, they may also have the effect of heightening many of the other risks and uncertainties described in this “Risk Factors” section which may materially and adversely affect our business, financial condition, results of operations and prospects.
Remote working conditions could harm our business.
15
In connection with the COVID-19 pandemic, we enabled substantially all of our employees to work remotely in compliance with relevant government advice and we have continued to allow for remote work generally throughout our operations. Allowing for remote or hybrid working conditions could negatively impact our marketing efforts, challenge our ability to enter into customer contracts in a timely manner, slow down our recruiting efforts, or create operational or other challenges, including decreased productivity or increased risk of cybersecurity incidents, any of which could adversely impact our business, financial condition, results of operations and prospects.
We must attract and retain highly skilled IT professionals. Failure to hire, train and retain IT professionals in sufficient numbers could have a material adverse effect on our business, financial condition, results of operations and prospects.
In order to sustain our growth, we must attract and retain a large number of highly skilled and talented IT professionals. Our headcount increased from December 31, 2020 to December 31, 2021, with the increase was primarily attributable to actions rehiring efforts following the COVID-19 pandemic, and our headcount slightly decreased in 2022 as we reorganized our delivery model. We anticipate that we will need to continue to increase our headcount as we implement our growth strategy. Our business is driven by people and, accordingly, our success depends upon our ability to attract, train, motivate, retain and effectively utilize highly skilled IT professionals in our delivery locations, which currently are principally located in Mexico and the United States. We believe that there is significant competition for technology professionals in the geographic regions in which our offices are located and in locations in which we intend to establish future offices and that such competition is likely to continue for the foreseeable future. Additionally, given our delivery locations in the United States, we must attract and retain a growing number of IT professionals with English language proficiency, which could further limit the talent base from which we can hire. Increased hiring by technology companies and increasing worldwide competition for skilled IT professionals may lead to a shortage in the availability of suitable personnel in the locations where we operate and hire. Our ability to properly staff projects, maintain and renew existing engagements and win new business depends, in large part, on our ability to recruit, train and retain IT professionals. We are currently focused on growing our workforce through university recruiting; however, this strategy and any other strategies we employ to hire, train and retain our IT professionals may be inadequate or may fail to achieve our objectives. Failure to hire, train and retain IT professionals in sufficient numbers could have a material adverse effect on our business, financial condition, results of operations and prospects.
Furthermore, the technology industry generally experiences a significant rate of turnover of its workforce. There is a limited pool of individuals who have the skills and training needed to help us grow our company. We compete for such talented individuals not only with other companies in our industry but also with companies in other industries, such as healthcare, financial services and technology generally. High attrition rates of IT personnel would increase our hiring and training costs, reduce our revenues and could have an adverse effect on our ability to complete existing contracts in a timely manner, meet client objectives and expand our business.
We may not be successful in building a university recruiting and hiring program, which could hamper our ability to scale our business and grow revenue.
As part of our growth strategy, we are focused on growing our workforce through university recruiting. In particular, we intend to focus our university recruitment efforts on Mexico. We cannot guarantee that we will be able to recruit and train a sufficient number of qualified university hires or that we will be successful in retaining these future employees. We may not be successful in building a reputable brand on college campuses or deepening and sustaining relationships with university administrations which could hinder our ability to grow our workforce through university hiring. Increased university hiring by technology companies, particularly in Latin America and the United States, and increasing worldwide competition for skilled technology professionals may lead to a shortage in the availability of qualified university personnel in the locations where we operate and hire. Failure to hire and train or retain qualified university graduates in sufficient numbers could have a material adverse effect on our business, financial condition, results of operations and prospects.
Increases in our levels of attrition may increase our operating costs and adversely affect our business, financial condition, results of operations and prospects.
The technology industry generally experiences a significant rate of turnover of its workforce. In the past, we experienced even higher attrition rates. If our attrition rate were to increase, our operating efficiency and productivity may decrease. We compete for talented individuals not only with other companies in our industry but also with companies in other industries, such as software services, engineering services and financial services companies, among others. High attrition rates of IT personnel could have an adverse effect on our ability to expand our business, may cause us to incur
16
greater personnel expenses and training costs, and may otherwise adversely affect our business, financial condition, results of operations and prospects.
Our revenue is dependent on a limited number of industry verticals, and any decrease in demand for IT services in these verticals or our failure to effectively penetrate new verticals could adversely affect our revenue, business, financial condition, results of operations and prospects.
Historically, we have focused on developing industry expertise and deep client relationships in a limited number of industry verticals. As a result, a substantial portion of our revenue has been generated by clients operating in financial services, healthcare and professional services industries. Our business growth largely depends on continued demand for our services from clients in the financial services, healthcare and professional services industries, and any slowdown or reversal of the trend to spend on IT services in these verticals could result in a decrease in the demand for our services and materially adversely affect our revenue, business, financial condition, results of operations and prospects.
In the verticals in which we operate, there are numerous competitors that may be entrenched with potential clients we target and which may be difficult to dislodge. As a result of these and other factors, our efforts to expand our client base may be expensive and may not succeed, and we therefore may be unable to grow our revenue. If we fail to further penetrate our existing industry verticals or expand our client base into new verticals, we may be unable to grow our revenue and our business, financial condition, results of operations and prospects may be harmed.
Other developments in the verticals in which we operate may also lead to a decline in the demand for our services, and we may not be able to successfully anticipate and prepare for any such changes. For example, consolidation or acquisitions, particularly involving our clients, may adversely affect our business. Our clients and potential clients may experience rapid changes in their prospects, substantial price competition and pressure on their profitability. This, in turn, may result in increasing pressure on us from clients and potential clients to lower our prices, which could adversely affect our revenue, business, financial condition, results of operations and prospects.
Our contracts could be unprofitable, and any failure by us to accurately estimate the resources required to complete a contract on time and on budget could have a material adverse effect on our business, financial condition, results of operations and prospects.
We perform our services primarily on a time-and-materials basis. Revenue from our time-and-materials contracts represented 70.8% and 82.3%, respectively, of total revenue for the years ended December 31, 2022 and 2021. We charge out the services performed by our employees under these contracts at daily or hourly rates that are specified in the contract. The rates and other pricing terms negotiated with our clients are highly dependent on our internal forecasts of our operating costs and predictions of increases in those costs influenced by wage inflation and other marketplace factors, as well as the volume of work provided by the client. Our predictions are based on limited data and could turn out to be inaccurate, resulting in contracts that may not be profitable. Typically, we do not have the ability to increase the rates established at the outset of a client project other than on an annual basis and often subject to caps. Independent of our right to increase our rates on an annual basis, client expectations regarding the anticipated cost of a project may limit our practical ability to increase our rates for ongoing work.
In addition to time-and-materials contracts, we also perform our services under fixed-price and managed services contracts. Revenue from our fixed-price and managed services contracts represented 29.2% and 17.7%, respectively, of total revenue for the year ended December 31, 2022 and 2021. Our pricing in fixed-price and managed services contracts is highly dependent on our assumptions and forecasts about the costs we expect to incur to complete the related project, which are based on limited data and could turn out to be inaccurate. Any failure by us to accurately estimate the resources, including the skills and seniority of our employees, required to complete a fixed-price or managed services contract on time and on budget or meet a service level on a managed services contract, or any unexpected increase in the cost of our employees assigned to the related project, office space or materials could expose us to risks associated with cost overruns and could have a material adverse effect on our business, financial condition, results of operations and prospects. Customers may be unable or unwilling to recognize phases or partial delivery of our services, thereby delaying their recognition of our work, which would impact our cash collection cycles. Customers may also not be able or willing to recognize phases or partial delivery of our services, which may delay payment for work we delivery, and which could negatively impact our cash collection cycles. In addition, any unexpected changes in economic conditions that affect any of our assumptions and predictions could render contracts that would have been favorable to us when signed unfavorable.
Our operating results could suffer if we are not able to maintain favorable pricing.
17
Our operating results are dependent, in part, on the rates we are able to charge for our services. Our rates are affected by a number of factors, including:
•our clients’ perception of our ability to add value through our services;
•our competitors’ pricing policies;
•bid practices of clients and their use of third-party advisors;
•the ability of large clients to exert pricing pressure;
•employee wage levels and increases in compensation costs;
•employee utilization levels;
•our ability to charge premium prices when justified by market demand or the type of service; and
•general economic conditions.
If we are not able to maintain favorable pricing for our services, our operating results could suffer.
If we do not maintain adequate employee utilization rates and productivity levels, our operating results may suffer and our business, financial condition, results of operations and prospects may be adversely affected.
Our operating results and the cost of providing our services are affected by the utilization rates of our employees. If we are not able to maintain appropriate utilization rates for our employees, our operating results may suffer. Our utilization rates are affected by a number of factors, including:
•our ability to promptly transition our employees from completed projects to new assignments and to hire and integrate new employees;
•our ability to forecast demand for our services and maintain an appropriate number of employees in each of our delivery locations;
•our ability to deploy employees with appropriate skills and seniority to projects;
•our ability to maintain continuity of existing resources on existing projects;
•our ability to manage the attrition of our employees; and
•our need to devote time and resources to training, including language training, professional development and other activities that cannot be billed to our clients.
Our revenue could also suffer if we misjudge demand patterns and do not recruit sufficient employees to satisfy demand. Employee shortages could prevent us from completing our contractual commitments in a timely manner and cause us to lose contracts or clients. Further, to the extent that we lack a sufficient number of employees with lower levels of seniority and daily or hourly rates, we may be required to deploy more senior employees with higher rates on projects without the ability to pass such higher rates along to our clients, which could adversely affect our operating results.
Additionally, our revenue could suffer if we experience a slowdown or stoppage of service for any clients or on any project for which we have dedicated employees and we are not be able to efficiently reallocate these employees to other clients to keep their utilization and productivity levels high. For example, we recently made investments to increase our sales team with the goal of driving positive revenue growth and stronger gross margins, but these anticipated benefits are dependent on many factors, including the demand for our services and the ability of these employees to achieve adequate utilization and productivity levels. If we are not able to maintain high resource utilization levels without corresponding cost reductions or price increases, our operating results will suffer and our business, financial condition, results of operations and prospects may be adversely affected.
We are focused on growing our client base in the United States and may not be successful.
We are focused on geographic expansion, particularly in the United States. In 2022 and 2021, 63.5% and 65.2% of our revenue came from clients in the United States, respectively.
We have made significant investments to expand our business in the United States, including our acquisitions of 4th Source in November 2018 and of AgileThought in July 2019, which increased our sales presence in the United States and added onshore and nearshore delivery capacity in Latin America and in the United States. However, our ability to acquire new clients will depend on a number of factors, including market perception of our services, our ability to successfully add nearshore capacity and pricing, competition and overall economic conditions. If we are unable to retain existing clients and attract new clients in the United States or if our expansion plans take longer to implement than expected or their costs exceed our expectations, we may be unable to grow our revenue and our business, financial condition, results of operations and prospects could be adversely affected.
18
We may be unable to effectively manage our growth or achieve anticipated growth, which could place significant strain on our management personnel, systems and resources.
We have experienced growth and significantly expanded our business over the past several years, both organically and through acquisitions. We intend to continue to grow our business in the foreseeable future and to pursue existing and potential market opportunities. We have also increased the size and complexity of the projects that we undertake for our clients and hope to continue being engaged for larger and more complex projects in the future. As we add new delivery sites, introduce new services or enter into new markets, we may face new market, technological and operational risks and challenges with which we are unfamiliar, and we may not be able to mitigate these risks and challenges to successfully grow those services or markets. We may not be able to achieve our anticipated growth or successfully execute large and complex projects, which could materially adversely affect our revenue, business, financial condition, results of operations and prospects.
Our future growth depends on us successfully recruiting, hiring and training IT professionals, expanding our delivery capabilities, adding effective sales staff and management personnel, adding service offerings, maintaining and expanding our engagements with existing clients and winning new business. Effective management of these and other growth initiatives will require us to continue to improve our infrastructure, execution standards and ability to expand services.
If we cannot maintain our culture as we grow, we could lose the innovation, creativity and teamwork fostered by our culture, and our business, financial condition, results of operations and prospects may be adversely affected.
We believe that a critical contributor to our success has been our culture, which is the foundation that supports and facilitates our distinctive approach. As we grow and are required to add more employees and infrastructure to support our growth, we may find it increasingly difficult to maintain our corporate culture. If we fail to maintain a culture that fosters career development, innovation, creativity and teamwork, we could experience difficulty in hiring and retaining IT professionals and other valuable employees. Failure to manage growth effectively could adversely affect the quality of the execution of our engagements, our ability to attract and retain IT professionals and other valuable employees, and our business, financial condition, results of operations and prospects. In addition, as we continue to integrate and acquire business as part of our growth strategy we risk preserving our culture, values and our entrepreneurial environment. Integrating acquisitions into our business can be particularly difficult due to different corporate cultures and values, geographic distance and other intangible factors.
Our management has limited experience in operating a public company.
Our executive officers have limited experience in the management of a publicly traded company subject to significant regulatory oversight and reporting obligations under federal securities laws. Our management team may not successfully or effectively manage our transition to a public company. Their limited experience in dealing with the increasingly complex laws pertaining to public companies could be a significant disadvantage in that it is likely that an increasing amount of their time may be devoted to these activities which will result in less time being devoted to our management and growth. We may not have adequate personnel with the appropriate level of knowledge, experience and training in the accounting policies, practices or internal controls over financial reporting required of public companies in the United States. It is possible that we will be required to expand our employee base and hire additional employees to support our operations as a public company, which will increase our operating costs in future periods.
Our business, financial condition, results of operations and prospects will suffer if we are not successful in delivering contracted services.
Our operating results are dependent on our ability to successfully deliver contracted services in a timely manner. We must consistently build, deliver and support challenging and complex projects and managed services. Failure to perform or observe any contractual obligations could damage our relationships with our clients and could result in cancellation or non-renewal of a contract. Some of the challenges we face in delivering contracted services to our clients include:
•maintaining high-quality control and process execution standards;
•maintaining planned resource utilization rates on a consistent basis;
•maintaining employee productivity and implementing necessary process improvements;
•controlling costs;
•maintaining close client contact and high levels of client satisfaction;
•maintaining physical and data security standards required by our clients;
19
•recruiting and retaining sufficient numbers of skilled IT professionals; and
•maintaining effective client relationships.
If we are unable to deliver contracted services, our relationships with our clients will suffer and we may be unable to obtain new engagements. In addition, it could damage our reputation, cause us to lose business, impact our operating margins and adversely affect our business, financial condition, results of operations and prospects, as well as subject us to breach of contract claims.
If we do not successfully manage and develop our relationships with key partners or if we fail to anticipate and establish new partnerships in new technologies, our business, financial condition, results of operations and prospects could be adversely affected.
We have partnerships with companies whose capabilities complement our own. A significant portion of our revenue and services and solutions are based on technology or software provided by a few major partners.
The business that we conduct through these partnerships could decrease or fail to grow for a variety of reasons. The priorities and objectives of our partners may differ from ours, and our partners are not prohibited from competing with us or forming closer or preferred arrangements with our competitors. In addition, some of our partners are also large clients or suppliers of technology to us. The decisions we make vis-à-vis a partner may impact our ongoing relationship. In addition, our partners could experience reduced demand for their technology or software, including, for example, in response to changes in technology, which could lessen related demand for our services and solutions.
We must anticipate and respond to continuous changes in technology and develop relationships with new providers of relevant technology. We must secure meaningful partnerships with these providers early in their life cycle so that we can develop the right number of certified people with skills in new technologies. If we are unable to maintain our relationships with current partners and identify new and emerging providers of relevant technology to expand our network of partners, we may not be able to differentiate our services or compete effectively in the market.
If we do not obtain the expected benefits from our partnerships for any reason, we may be less competitive, our ability to offer attractive solutions to our clients may be negatively affected, and our business, financial condition, results of operations and prospects could be adversely affected.
Our sales of services and operating results may experience significant variability and our past results may not be indicative of our future performance.
Our operating results may fluctuate due to a variety of factors, many of which are outside of our control. As a result, comparing our operating results on a period-to-period basis may not be meaningful. You should not rely on our past results as an indication of our future performance.
Factors that are likely to cause these variations include:
•the number, timing, scope and contractual terms of projects in which we are engaged;
•delays in project commencement or staffing delays due to difficulty in assigning appropriately skilled or experienced professionals;
•the accuracy of estimates on the resources, time and fees required to complete projects and costs incurred in the performance of each project;
•inability to retain employees or maintain employee utilization levels;
•changes in pricing in response to client demand and competitive pressures;
•the business decisions of our clients regarding the use of our services or spending on technology;
•the ability to further grow sales of services from existing clients and the ability to substitute revenue from engagements with governmental clients as we discontinue new engagements with governmental entities;
•seasonal trends and the budget and work cycles of our clients;
•delays or difficulties in expanding our operational facilities or infrastructure;
•our ability to estimate costs under fixed price or managed services contracts;
•employee wage levels and increases in compensation costs;
•unanticipated contract or project terminations;
•the timing of collection of accounts receivable;
•our ability to manage risk through our contracts;
•the continuing financial stability of our clients;
20
•changes in our effective tax rate or unanticipated tax assessments;
•impacts of any acquisitions and our ability to successfully integrate any acquisitions;
•the implementation of new laws or regulations and/or changes to current applicable laws or regulations or their interpretation or application;
•uncertainly and disruption to the global markets including due to public health pandemics, such as the COVID-19 pandemic;
•fluctuations in currency exchange rates; and
•general economic conditions.
As a result of these factors, our operating results may from time to time fall below our estimates or the expectations of public market analysts and investors.
Potential future acquisitions could prove difficult to integrate, disrupt our business, dilute stockholder value and strain our resources, which may adversely affect our business, financial condition, results of operations and prospects.
In the future, we plan to acquire additional businesses that we believe could complement or expand our business. Integrating the operations of acquired businesses successfully or otherwise realizing any of the anticipated benefits of acquisitions, including anticipated cost savings and additional revenue opportunities, involves a number of potential challenges. In addition, we have previously and may in the future use earn-out arrangements in connection with acquisitions. Using earn-out arrangements to consummate an acquisition, pursuant to which we agree to pay additional amounts of contingent consideration based on the achievement of a predetermined metric, has at times and may continue to make our integration efforts more complicated. We have also previously and may in the future negotiate restructured earn-out arrangements following the closing of acquisitions, which causes a diversion of management attention from ongoing business concerns and may result in additional cost in connection with the applicable acquisitions.
The failure to meet the integration challenges stemming from our acquisitions could seriously harm our financial condition and results of operations. Realizing the benefits of acquisitions depends in part on the integration of operations and personnel. These integration activities are complex and time-consuming, and we may encounter unexpected difficulties or incur unexpected costs, including:
•our inability to achieve the operating synergies anticipated in the acquisitions;
•diversion of management attention from ongoing business concerns to integration matters or earn-out calculations, restructurings or disputes;
•challenges in consolidating and rationalizing IT platforms and administrative infrastructures;
•complexities associated with managing the geographic separation of the combined businesses and consolidating multiple physical locations;
•difficulties in retaining IT professionals and other key employees and achieving minimal unplanned attrition;
•difficulties in integrating personnel from different corporate cultures while maintaining focus on providing consistent, high quality service;
•our inability to exert control of acquired businesses that include earn-out payments or the risk that actions incentivized by earn-out payments will hinder integration efforts;
•our inability to demonstrate to our clients and to clients of acquired businesses that the acquisition will not result in adverse changes in client service standards or business focus;
•possible cash flow interruption or loss of revenue as a result of transitional matters; and
•inability to generate sufficient revenue to offset acquisition costs.
Acquired businesses may have liabilities or adverse operating issues that we fail to discover through due diligence prior to the acquisition. In particular, to the extent that prior owners of any acquired businesses or properties failed to comply with or otherwise violated applicable laws or regulations, or failed to fulfill their contractual obligations to clients, we, as the successor owner, may be financially responsible for these violations and failures and may suffer financial or reputational harm or otherwise be adversely affected. Our acquisition targets may not have as robust internal controls over financial reporting as would be expected of a public company. Acquisitions also frequently result in the recording of goodwill and other intangible assets which are subject to potential impairment in the future that could harm our financial results. We may take material impairment charges in the future related to acquisitions. We may also become subject to new regulations as a result of an acquisition, including if we acquire a business serving clients in a regulated industry or acquire a business with clients or operations in a country in which we do not already operate.
21
In addition, if we finance acquisitions by incurring debt under credit facilities or issuing notes and are unable to realize the expected benefits of those acquisitions for any reason, we may be unable to repay, refinance or restructure that indebtedness when payment is due, and the lenders of that indebtedness could proceed against any collateral granted to secure such indebtedness or force us into bankruptcy or liquidation. If we finance acquisitions by issuing convertible debt or equity securities, our existing stockholders may also be diluted, which could affect the market price of our common stock. As a result, if we fail to properly evaluate acquisitions or investments, we may not achieve the anticipated benefits of any such acquisitions, and we may incur costs in excess of what we anticipate. Acquisitions frequently involve benefits related to the integration of operations of the acquired business. The failure to successfully integrate the operations or otherwise to realize any of the anticipated benefits of the acquisition could seriously harm our results of operations.
Strategic acquisitions to complement and expand our business have been and may remain an important part of our competitive strategy. If we fail to acquire companies whose prospects, when combined with our company, would increase our value, then our business, financial condition, results of operations and prospects may be adversely affected.
We have expanded, and may continue to expand, our operations through strategically targeted acquisitions of additional businesses. On occasion, selective acquisitions have expanded our service capabilities, geographic presence, or client base. There can be no assurance that we will be able to identify, acquire or profitably manage additional businesses or successfully integrate any acquired businesses without substantial expense, delays or other operational or financial risks and problems. In addition, any client satisfaction or performance problems within an acquired business could have a material adverse impact on our corporate reputation and brand. We cannot assure you that any acquired businesses will achieve anticipated revenues and earnings. Any failure to manage our acquisition strategy successfully could have a material adverse effect on our business, financial condition, results of operations and prospects.
We face intense competition.
The market for IT services is intensely competitive, highly fragmented and subject to rapid change and evolving industry standards and we expect competition to intensify. We believe that the principal competitive factors that we face are the ability to innovate; technical expertise and industry knowledge; end-to-end solution offerings; delivery location; price; reputation and track record for high-quality and on-time delivery of work; effective employee recruiting; training and retention; and responsiveness to clients’ business needs.
Our primary competitors include next-generation IT service providers, such as EPAM Systems, Inc., Endava Plc, Infosys Limited and Globant S.A., global consulting and traditional global IT service companies such as Accenture plc, Capgemini SE, Cognizant Technology Solutions Corporation and International Business Machines Corporation, or IBM; and in-house IT and development departments of our existing and potential clients. Many of our competitors have substantially greater financial, technical and marketing resources and greater name recognition than we do. As a result, they may be able to compete more aggressively on pricing or devote greater resources to the development and promotion of IT services. Companies based in some emerging markets also present significant price competition due to their competitive cost structures and tax advantages.
In addition, there are relatively few barriers to entry into our markets and we have faced, and expect to continue to face, competition from new market entrants. Further, there is a risk that our clients may elect to increase their internal resources to satisfy their IT service needs as opposed to relying on third-party service providers. The IT services industry may also undergo consolidation, which may result in increased competition in our target markets from larger firms that may have substantially greater financial, marketing or technical resources, may be able to respond more quickly to new technologies or processes and changes in client demands, and may be able to devote greater resources to the development, promotion and sale of their services than we can. Increased competition could also result in price reductions, reduced operating margins and loss of our market share. We cannot assure you that we will be able to compete successfully with existing or new competitors or that competitive pressures will not materially adversely affect our business, financial condition, results of operations and prospects.
We are dependent on members of our senior management team.
Our future success heavily depends upon the continued services of our senior management team. We currently do not maintain key person life insurance for any of the members of our senior management team. In addition, we do not have employment agreements with all of the members of our senior management team. Even those employees with whom we have employment agreements or other arrangements may terminate their employment with us with or without cause, often
22
with limited notice. If one or more of our senior executives are unable or unwilling to continue in their present positions, it could disrupt our business operations, and we may not be able to replace them easily, on a timely basis or at all. In addition, competition for senior executives in our industry is intense, and we may be unable to retain our senior executives or attract and retain new senior executives in the future, in which case our business may be severely disrupted, and our financial condition, results of operations and prospects may be adversely affected.
If any of our senior management team joins a competitor or forms a competing company, we may lose clients, suppliers, know-how and IT professionals and staff members to them. Also, if any of our sales executives or other sales personnel, who generally maintain close relationships with our clients, joins a competitor or forms a competing company, we may lose clients to that company, and our revenue, business, financial condition, results of operations and prospects may be materially adversely affected. Additionally, there could be unauthorized disclosure or use of our technical knowledge, business practices or procedures by such personnel. Any non-competition, non-solicitation or non-disclosure agreements we have with our senior executives or key employees might not provide effective protection to us in light of legal uncertainties associated with the enforceability of such agreements.
Forecasts of our market size may prove to be inaccurate, and even if the markets in which we compete achieve the forecasted growth, there can be no assurance that our business will grow at similar rates, or at all.
Growth forecasts included in this annual report on Form 10-K relating to our market opportunity and the expected growth in the market for our services are subject to significant uncertainty and are based on both internal and third-party assumptions and estimates which may prove to be inaccurate. Even if these markets meet our size estimates and experience the forecasted growth, we may not grow our business at similar rates, or at all. Our growth is subject to many risks and uncertainties, including our success in implementing our business strategy. Accordingly, the forecasts of market growth included in this annual report on Form 10-K should not be taken as indicative of our future growth.
We operate in a rapidly evolving industry, which makes it difficult to evaluate our future prospects and may increase the risk that we will not continue to be successful.
The IT services industry is competitive and continuously evolving, subject to rapidly changing demands and constant technological developments. As a result, success and performance metrics are difficult to predict and measure in our industry. Because services and technologies are rapidly evolving and each company within the industry can vary greatly in terms of the services it provides, its business model, and its results of operations, it can be difficult to predict how any company’s services, including ours, will be received in the market. Neither our past financial performance nor the past financial performance of any other company in the IT services industry is indicative of how our company will fare financially in the future. Our future profits may vary substantially from those of other companies and those we have achieved in the past, making an investment in our company risky and speculative. If our clients’ demand for our services declines as a result of economic conditions, market factors or shifts in the technology industry, our business would suffer and our financial condition, results of operations and prospects could be adversely affected.
We have in the past experienced, and may in the future experience, a long selling and implementation cycle with respect to certain projects that require us to make significant resource commitments prior to realizing revenue for our services.
We have experienced, and may in the future experience, a long selling cycle with respect to certain projects that require significant investment of human resources and time by both our clients and us. Before committing to use our services, potential clients may require us to allocate substantial time and resources educating them on the value of our services and our ability to meet their requirements. Therefore, our selling cycle is subject to many risks and delays over which we have little or no control, including our clients’ decision to choose alternatives to our services (such as other IT service providers or in-house resources) and the timing of our clients’ budget cycles and approval processes. If our sales cycle unexpectedly lengthens for one or more projects, it could affect the timing of our recognition of revenue and hinder or delay our revenue growth. For certain clients, we may begin work and incur costs prior to executing the contract. A delay in our ability to obtain a signed agreement or other persuasive evidence of an arrangement, or to complete certain contract requirements in a particular financial period, could reduce our revenue in that financial period or render us entirely unable to collect payment for work already performed.
Implementing our services also involves a significant commitment of resources over an extended period of time from both our clients and us. Our clients may experience delays in obtaining internal approvals or delays associated with technology, thereby further delaying the implementation process. Our current and future clients may not be willing or able to invest the time and resources necessary to implement our services, and we may fail to close sales with potential clients to
23
which we have devoted significant time and resources. Any significant failure to generate revenue or delays in recognizing revenue after incurring costs related to our sales or services process could materially adversely affect our business, financial condition, results of operations and prospects.
If we provide inadequate service or cause disruptions in our clients’ businesses, it could result in significant costs to us, the loss of our clients and damage to our corporate reputation, and our business, financial condition, results of operations and prospects may be adversely affected.
Any defects or errors or failure to meet clients’ expectations in the performance of our contracts could result in claims for substantial damages against us. In addition, certain liabilities, such as claims of third parties for intellectual property infringement and breaches of data protection and security requirements, for which we may be required to indemnify our clients, could be substantial. The successful assertion of one or more large claims against us in amounts greater than those covered by our then-current insurance policies could materially adversely affect our business, financial condition, results of operations and prospects. Even if such assertions against us are unsuccessful, we may incur reputational harm and substantial legal fees. In addition, a failure or inability to meet a contractual requirement, in addition to subjecting us to breach of contract claims, could seriously damage our corporate reputation and limit our ability to attract new business.
In certain contracts, we agree to complete a project by a scheduled date or maintain certain service levels. We may suffer reputational harm and loss of future business if we do not meet our contractual commitments. In addition, if the project experiences a performance problem, we may not be able to recover the additional costs we will incur to remediate the problem, which could exceed revenue realized from a project. Under our managed services contracts, we may be required to pay liquidated damages if we are unable to maintain agreed-upon service levels, and our business, financial condition, results of operations and prospects may be adversely affected.
Our business depends on a strong brand and corporate reputation. Damage to our reputation could be difficult and time-consuming to repair, could make potential or existing clients reluctant to select us for new engagements resulting in a loss of business and could adversely affect our employee recruitment and retention efforts, which in turn could adversely affect our business, financial condition, results of operations and prospects.
Since many of our specific client engagements involve highly tailored solutions, our corporate reputation is a significant factor in our clients’ and prospective clients’ determination of whether to engage us. We believe our brand name and our reputation are important corporate assets that help distinguish our services from those of our competitors and also contribute to our efforts to recruit and retain talented IT professionals. Successfully maintaining and enhancing our brand will depend largely on the effectiveness of our marketing efforts, our ability to provide reliable services that continue to meet the needs of our clients at competitive prices, our ability to maintain our clients’ trust, our ability to continue to develop new services, and our ability to successfully differentiate our services and capabilities from those of our competitors. Our brand promotion activities may not generate client awareness or yield increased revenue, and even if they do, any increased revenue may not offset the expenses we incur in building our brand. If we fail to successfully promote and maintain our brand, our business, financial condition, results of operations and prospects may suffer.
Our corporate reputation is susceptible to damage by actions or statements made by current or former employees or clients, competitors, vendors and adversaries in legal proceedings, as well as members of the investment community and the media. In addition, if errors are discovered in our historical financial data, we could suffer reputational damage. There is a risk that negative information about our company, even if based on false rumor or misunderstanding, could adversely affect our business. In particular, damage to our reputation could be difficult and time-consuming to repair, could make potential or existing clients reluctant to select us for new engagements, resulting in a loss of business, and could adversely affect our employee recruitment and retention efforts. Damage to our reputation could also reduce the value and effectiveness of our brand name and could reduce investor confidence in us and adversely affect our business, financial condition, results of operations and prospects.
If we do not continue to innovate and remain at the forefront of next-generation technologies and related market trends, we may lose clients and not remain competitive, and our business, financial condition, results of operations and prospects may be adversely affected.
Our success depends on delivering innovative solutions that leverage emerging next-generation technologies and emerging market trends to drive increased revenue. Technological advances and innovation are constant in the IT services industry. As a result, we must continue to invest significant resources to stay abreast of technology developments so that we may continue to deliver solutions that our clients will wish to purchase. If we are unable to anticipate technology
24
developments, enhance our existing services or develop and introduce new services to keep pace with such changes and meet changing client needs, we may lose clients and our revenue, business, financial condition, results of operations and prospects could suffer. Our results of operations would also suffer if our employees are not responsive to the needs of our clients, not able to help clients in driving innovation and not able to help our clients in effectively bringing innovative ideas to market. Our competitors may be able to offer design and innovation services that are, or that are perceived to be, substantially similar or better than those we offer. This may force us to reduce our prices and to allocate significant resources in order to remain competitive, which we may be unable to do profitably or at all. Because many of our clients and potential clients regularly contract with other IT service providers, these competitive pressures may be more acute than in other industries.
Our ability to expand our business and procure new contracts or enter into beneficial business arrangements could be affected to the extent we enter into agreements with clients containing non-competition clauses.
We have in the past and may in the future enter into agreements with clients that restrict our ability to accept assignments from, or render similar services to, those clients’ customers, require us to obtain our clients’ prior written consent to provide services to their customers or restrict our ability to compete with our clients, or bid for or accept any assignment for which those clients are bidding or negotiating. These restrictions could hamper our ability to compete for and provide services to other clients in a specific industry in which we have expertise and could materially adversely affect our business, financial condition, results of operations and prospects.
Our cash flows and results of operations may be adversely affected if we are unable to collect on billed and unbilled receivables from clients, which may in turn adversely affect our business, financial condition and prospects.
Our business depends on our ability to successfully obtain payment from our clients of the amounts they owe us for work performed. We evaluate the financial condition of our clients and usually bill and collect on relatively short cycles. We maintain provisions against receivables. Actual losses on client balances could differ from those that we currently anticipate and, as a result, we may need to adjust our provisions. We may not accurately assess the creditworthiness of our clients. Macroeconomic conditions, such as a potential credit crisis in the global financial system, could also result in financial difficulties for our clients, including limited access to the credit markets, insolvency or bankruptcy. Such conditions could cause clients to delay payment, request modifications of their payment terms, or default on their payment obligations to us, all of which could increase our receivables balance. Timely collection of fees for client services also depends on our ability to complete our contractual commitments and subsequently bill for and collect our contractual service fees. If we are unable to meet our contractual obligations, we might experience delays in the collection of or be unable to collect our client balances, which would adversely affect our results of operations and our cash flows. In addition, if we experience an increase in the time required to bill and collect for our services, our cash flows and results of operations could be adversely affected, which in turn could adversely affect our business, financial condition and prospects.
We are from time to time involved in, or may in the future be subject to, claims, suits, government investigations, and other proceedings that may result in adverse outcomes.
We are from time to time involved in, or may in the future be subject to, claims, suits, government investigations, and proceedings arising from our business, including actions with respect to intellectual property, privacy, consumer protection, information security, data protection or law enforcement matters, tax matters, labor and employment, and commercial claims, as well as actions involving our customers, shareholder derivative actions, purported class action lawsuits, and other matters. For example, a customer recently filed a claim against us alleging that we breached our agreement to provide the customer with a software product. See “Item 3. Legal Proceedings” in this Annual Report on Form 10-K for additional information.
Such claims, suits, government investigations, and proceedings are inherently uncertain, and their results cannot be predicted with certainty. Regardless of the outcome, any such legal proceedings can have an adverse impact on us because of legal costs, diversion of management and other personnel, negative publicity and other factors. In addition, it is possible that a resolution of one or more such proceedings could result in reputational harm, liability, penalties, or sanctions, as well as judgments, consent decrees, or orders preventing us from offering certain features, functionalities, products, or services, or requiring a change in our business practices, products or technologies, which could in the future materially and adversely affect our business, operating results and financial condition.
If we fail to maintain an effective system of disclosure controls and internal control over financial reporting, our ability to produce timely and accurate financial statements or comply with applicable laws and regulations could be impaired.
25
As a public company we are required to maintain internal control over financial reporting and to report any material weakness in such internal control. In connection with the audit of our financial statements for the year ended December 31, 2022 and 2021, we identified material weaknesses in our internal control over financial reporting. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim consolidated financial statements will not be prevented or detected on a timely basis. These material weaknesses identified related to the proper application of revenue recognition related to our Latin America business and proper accounting for complex financial instruments.
As of December 31, 2022, management concluded that these material weaknesses in internal control over financial reporting were remediated. For the material weakness related to proper accounting of complex financial instruments, management remediated the material weakness by completing training, enhancing accounting personnel’s understanding of complex convertible debt instruments, and adding controls over the review of the accounting assessment for complex financial instruments, For the material weakness related to proper application of revenue recognition related to our Latin America business, management remediated the material weakness redesigning the respective control framework, including implementation of enhanced control procedures.
As of December 31, 2022 we concluded that our previously identified material weaknesses were remediated, but we can provide no assurance that additional material weaknesses in our internal control over financial reporting will not be identified in the future. Our failure to maintain an effective system of internal control over financial reporting could result in errors in our financial statements that could result in a restatement of our financial statements, cause covenant breaches under our debt and/or other agreements, cause us to fail to meet our periodic reporting obligations, reduce investor confidence in us, materially and adversely affect the value of our common stock, and have a material adverse effect on our business, financial condition, results of operations and prospects.
Our independent registered public accounting firm is not required to formally attest to the effectiveness of our internal control over financial reporting until after we are no longer an “emerging growth company” as defined in the JOBS Act. An independent assessment of the effectiveness of our internal control over financial reporting could detect problems that our management’s assessment might not. Undetected material weaknesses in our internal control over financial reporting could lead to financial statement restatements, cause covenant breaches under our debt and/or other agreements, cause us to fail to meet our periodic reporting obligations, reduce investor confidence in us, materially and adversely affect the value of our common stock, and have a material adverse effect on our business, financial condition, results of operations and prospects.
We have and will continue to incur significantly increased costs as a result of operating as a public company, and our management is required to devote substantial time to compliance efforts.
We have and will continue to incur significant legal, accounting, insurance and other expenses as a result of being a public company. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), and the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), as well as related rules implemented by the SEC, have required changes in corporate governance practices of public companies. In addition, rules that the SEC is implementing or has implemented are expected to require additional changes. We expect that compliance with these and other similar laws, rules and regulations, including compliance with Section 404 of the Sarbanes-Oxley Act, will continue to substantially increase our expenses, including legal and accounting costs, and make some activities more time-consuming and costly. We also expect these laws, rules and regulations to make it more expensive for us to maintain director and officer liability insurance, and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage, which may make it more difficult for us to attract and retain qualified persons to serve on our board of directors or as officers. Although the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”) may, for a limited period of time, somewhat lessen the cost of complying with these additional regulatory and other requirements, we nonetheless expect a substantial increase in legal, accounting, insurance and certain other expenses in the future, which will negatively impact our results of operations and financial condition.
Our business is subject to the risks of earthquakes, fire, power outages, floods and other catastrophic events, and to interruption by human-made problems such as terrorism.
A significant natural disaster, such as an earthquake, fire or flood, or a significant power outage could have a material adverse impact on our business, financial condition, results of operations and prospects. For instance, we have key facilities
26
in Mexico City, which has been the site of numerous earthquakes. In the event we are hindered by any of the events discussed above, our ability to provide our services to clients could be delayed.
In addition, our facilities are vulnerable to damage or interruption from human error, intentional bad acts, pandemics, war, terrorist attacks, power losses, hardware failures, systems failures, telecommunications failures and similar events. The occurrence of a natural disaster, power failure or an act of terrorism, vandalism or other misconduct could result in lengthy interruptions in provision of our services and failure to comply with our obligations to our clients. The occurrence of any of the foregoing events could damage our systems and hardware or could cause them to fail completely, and our insurance may not cover such events or may be insufficient to compensate us for the potentially significant losses, including the potential harm to the future growth of our business, that may result from interruptions in the provision of our services to clients as a result of system failures.
All of the aforementioned risks may be exacerbated if any of our various disaster recovery plans, which we maintain in select jurisdictions, prove to be inadequate. To the extent that any of the above results in delayed or reduced sales or increase our cost of sales, our business, financial condition, results of operations and prospects could be adversely affected.
Risks Related to Cybersecurity and Data Privacy
If we are unable to comply with our security obligations or our computer systems are or become vulnerable to security breaches, we could face reputational damage and lose clients and revenue, and our business, financial condition, results of operations and prospects could be adversely affected.
The services we provide are often critical to our clients’ businesses. Certain of our client contracts require us to comply with security obligations, which could include breach notification and remediation obligations, maintaining network security and backup data, ensuring our network is virus-free, maintaining business continuity planning procedures, and verifying the integrity of employees that work with our clients by conducting background checks. Any failure in a client’s system, whether or not a result of or related to the services we provide, or breach of security relating to the services we provide to the client, could adversely affect our business, including by damaging our reputation or resulting in a claim for substantial damages against us. Our liability for security breaches of our or a client’s systems or breaches of data security requirements, for which we may be required to indemnify our clients, may be extensive. Any failure of our equipment or systems, or any disruption to basic infrastructure like power and telecommunications in the locations in which we operate, could impede our ability to provide services to our clients, have a negative impact on our reputation, cause us to lose clients, and adversely affect our business, financial condition, results of operations and prospects. Additionally, our failure to continuously upgrade or increase the reliability and redundancy of our infrastructure to meet the demands of our customers could adversely affect the functioning and performance of our services and could in turn affect our results of operations. Any steps we take to increase the security, reliability and redundancy of our systems may be expensive and may not be successful in preventing system failures.
In addition, we often have access to or are required to collect, store and otherwise process confidential client data. If any person, including any of our employees or former employees, accidentally or intentionally, penetrates our network security, exposes our data or code, or misappropriates data or code that belongs to us, our clients, or our clients’ customers, we could be subject to significant liability from our clients or our clients’ customers for breaching contractual obligations or applicable privacy laws, rules and regulations. Unauthorized disclosure of sensitive or confidential client and customer data, including personal data, whether through breach of our computer systems, systems failure, loss or theft of confidential information or intellectual property belonging to our clients or our clients’ customers, or otherwise, could damage our brand and reputation, cause us to lose clients and revenue, and result in financial and other potential losses by us. For more information, see “Risk Factors — We are subject to stringent and changing regulatory, legislative and industry standard developments regarding privacy and data security matters, which could adversely affect our ability to conduct our business.”
We are also subject to numerous commitments in our contracts with our clients. Significant unavailability of our services due to attacks could cause users to claim breach of contract and cease using our services, which could materially and adversely affect our business, financial condition, results of operations and prospects. We also may be subject to liability claims if we breach our contracts, including as a result of any accidental or intentional breach of our security.
Despite the procedures, systems and internal controls we have implemented to comply with our contracts, we may breach these commitments, whether through a weakness in these procedures, systems and internal controls, the negligence or the willful act of an employee or contractor. Our insurance policies, including our errors and omissions insurance, which
27
we only maintain in select jurisdictions, may be inadequate to compensate us for the potentially significant losses that may result from claims arising from breaches of our contracts, disruptions in our services, failures of or disruptions to our infrastructure, catastrophic events and disasters or otherwise. In addition, such insurance may not be available to us in the future on economically reasonable terms, or at all, or our insurance could undergo a change in policy including premium increases or the imposition of large deductible or co-insurance requirements. Further, our insurance may not cover all claims made against us and defending a suit, regardless of its merit, could be costly and divert management’s attention.
We are subject to stringent and changing regulatory, legislative and industry standard developments regarding privacy and data security matters, which could adversely affect our ability to conduct our business.
We, along with a significant number of our clients, are subject to a variety of federal, state, local and international laws, rules, regulations and industry standards related to data privacy and cybersecurity, and restrictions or technological requirements regarding the processing, collection, use, storage, protection, retention or transfer of data. The regulatory framework for privacy and security issues worldwide is rapidly evolving and, as a result, implementation standards and enforcement practices are likely to remain uncertain for the foreseeable future.
For example, the European Union General Data Protection Regulation, or the GDPR, came into force in May 2018 and contains numerous requirements and changes from prior EU law, including more robust obligations on data processors and data controllers, heavier documentation requirements for data protection compliance programs, greater control over personal data by data subjects (e.g., the “right to be forgotten”), increased data portability for data subjects, data breach notification requirements and increased fines. In particular, under the GDPR, fines of up to €20 million or up to 4% of the annual global revenue of the noncompliant company, whichever is greater, could be imposed for violations of certain of the GDPR’s requirements. The GDPR requirements apply not only to third-party transactions, but also to transfers of information between us and our subsidiaries, including employee information.
If our efforts to comply with GDPR or other applicable EU laws and regulations are not successful, or are perceived to be unsuccessful, it could adversely affect our business in the EU. Further, in July 2020, the European Court of Justice, or the ECJ, invalidated the EU-U.S. Privacy Shield, which had enabled the transfer of personal data from the EU to the U.S. for companies that had self-certified to the Privacy Shield. The ECJ decision also raised questions about the continued validity of one of the primary alternatives to the EU-U.S. Privacy Shield, namely the European Commission’s Standard Contractual Clauses, and EU regulators have issued additional guidance regarding considerations and requirements that we and other companies must consider and undertake when using the Standard Contractual Clauses. Although the EU has presented a new draft set of contractual clauses, at present, there are few, if any, viable alternatives to the EU-U.S. Privacy Shield and the Standard Contractual Clauses. To the extent that we were to rely on the EU-U.S. or Swiss-U.S. Privacy Shield programs, we will not be able to do so in the future, and the ECJ’s decision and other regulatory guidance or developments may impose additional obligations with respect to the transfer of personal data from the EU and Switzerland to the U.S., each of which could restrict our activities in those jurisdictions, limit our ability to provide our products and services in those jurisdictions, or increase our costs and obligations and impose limitations upon our ability to efficiently transfer personal data from the EU and Switzerland to the U.S.
Further, the exit of the United Kingdom, or the UK, from the EU, often referred to as Brexit, has created uncertainty with regard to data protection regulation in the UK. Specifically, the UK exited the EU on January 31, 2020, subject to a transition period that ended December 31, 2020. As of January 1, 2021, following the expiry of such transition period, data processing in the UK is governed by a UK version of the GDPR (combining the GDPR and the UK’s Data Protection Act 2018), exposing us to two parallel regimes, each of which authorizes similar fines and other potentially divergent enforcement actions for certain violations. With respect to transfers of personal data from the EEA to the UK, the European Commission has published a decision finding that the UK ensures an adequate level of data protection, although such decision is subject to renewal and may be revised or revoked in the interim, resulting in uncertainty and the potential for increasing scope for divergence in application, interpretation and enforcement of the data protection law as between the UK and EEA.
Another example is the recently adopted the California Consumer Privacy Act of 2018, or the CCPA, in the United States, which became effective on January 1, 2020. The CCPA establishes a new privacy framework for covered businesses by creating an expanded definition of personal information, establishing new data privacy rights for California residents, imposing special rules on the collection of data from minors, and creating a new and potentially severe statutory damages framework for violations of the CCPA and for businesses that fail to implement reasonable security procedures and practices to prevent data breaches. The CCPA provides for severe civil penalties for violations, as well as a private right of action for data breaches that is expected to increase data breach litigation. The CCPA may increase our compliance
28
costs and potential liability. In addition, it is anticipated the CCPA will be expanded on January 1, 2023, when the California Privacy Rights Act of 2020, or the CPRA, becomes operative. The CPRA will, among other things, give California residents the ability to limit use of certain sensitive personal information, further restrict the use of cross-contextual advertising, establish restrictions on the retention of personal information, expand the types of data breaches subject to the CCPA’s private right of action, provide for increased penalties for CPRA violations concerning California residents under the age of 16, and establish a new California Privacy Protection Agency to implement and enforce the CCPA and the CPRA. While aspects of the CPRA and its interpretation remain to be determined in practice, they create further uncertainty and may result in additional costs and expenses in an effort to comply. Additionally, on March 2, 2021, the Virginia Consumer Data Protection Act, or the CDPA, was signed into law. The CDPA becomes effective beginning January 1, 2023, and contains provisions that require businesses to conduct data protection assessments in certain circumstances, and that require opt-in consent from consumers to process certain sensitive personal information. These laws could mark the beginning of a trend toward more stringent privacy legislation in the United States, which could increase our potential liability and adversely affect our business. Additionally, all 50 states now have data breach laws that require timely notification to individuals, and at times regulators, the media or credit reporting agencies, if a company has experienced the unauthorized access or acquisition of personal information. More than a dozen states require that reasonable information security protections be used to protect personal information. If we fail to comply with any applicable privacy laws, rules, regulations, industry standards and other legal obligations, we may be subject to the aforementioned penalties, our business, financial condition, results of operations and prospects could be adversely affected.
Also, in the United States, further laws, rules and regulations to which we may be subject include those promulgated under the authority of the Federal Trade Commission, the Gramm Leach Bliley Act and state cybersecurity and breach notification laws, as well as regulator enforcement positions and expectations. Globally, governments and agencies have adopted and could in the future adopt, modify, apply or enforce laws, rules, policies, regulations and standards covering user privacy, data security, technologies such as cookies that are used to collect, store or process data, marketing online, the use of data to inform marketing, the taxation of products and services, unfair and deceptive practices, and the collection, including the collection, use, processing, transfer, storage or disclosure of data associated with unique individual internet users. New regulation or legislative actions regarding data privacy and security, together with applicable industry standards, may increase the costs of doing business and could have a material adverse effect on our business, financial condition, results of operations and prospects.
While we have taken steps to mitigate the impact of the GDPR and other laws, rules, regulations and standards on us, including by implementing certain security measures and mechanisms, the efficacy and longevity of these mechanisms remains uncertain. Despite our ongoing efforts to bring practices into compliance, we may not be successful either due to various factors within our control, such as limited financial or human resources, or other factors outside our control. Our efforts could fail and result in unauthorized access to or disclosure, modification, misuse, loss or destruction of data. It is also possible that local data protection authorities may have different interpretations of the GDPR and other laws, rules, regulations and standards to which we are subject, leading to potential inconsistencies amongst various EU member states. Because the interpretation and application of many privacy and data protection laws, rules and regulations along with contractually imposed industry standards are uncertain, it is possible that these laws may be interpreted and applied in a manner that is inconsistent with our existing data management practices or the features of our services and platform capabilities. If so, in addition to the possibility of fines, lawsuits, regulatory investigations, imprisonment of company officials and public censure, other claims and penalties, significant costs for remediation and damage to our reputation, we could be required to fundamentally change our business activities and practices or modify our services and platform capabilities, any of which could have an adverse effect on our business, financial condition, results of operations and prospects.
Certain of our clients require solutions that ensure security given the nature of the content being distributed and associated applicable regulatory requirements. In particular, our U.S. healthcare industry clients may rely on our solutions to protect information in compliance with the requirements of the Health Insurance Portability and Accountability Act of 1996, the 2009 Health Information Technology for Economic and Clinical Health Act, the Final Omnibus Rule of January 25, 2013, and related regulations, which are collectively referred to as HIPAA, and which impose privacy and data security standards that protect individually identifiable health information by limiting the uses and disclosures of individually identifiable health information and requiring that certain data security standards be implemented to protect this information. As a “business associate” to “covered entities” that are subject to HIPAA, such as certain healthcare providers, health plans and healthcare clearinghouses, we also have our own compliance obligations directly under HIPAA and pursuant to the business associate agreements that we are required to enter into with our clients that are HIPAA-covered entities and any vendors we engage that access, use, transmit or store individually identifiable health information in connection with our business operations. Compliance efforts can be expensive and burdensome, and if we fail to comply with our obligations
29
under HIPAA, our required business associate agreements or applicable state data privacy laws and regulations, we could be subject to regulatory investigations and orders, significant fines and penalties, mitigation and breach notification expenses, private litigation and contractual damages, corrective action plans and related regulatory oversight and reputational harm.
We make public statements about our use and disclosure of personal information through our privacy policies, information provided on our website and press statements. Although we endeavor to comply with our public statements and documentation, we may at times fail to do so or be alleged to have failed to do so. The publication of our privacy policies and other statements that provide promises and assurances about data privacy and security can subject us to potential government or legal action if they are found to be deceptive, unfair or misrepresentative of our actual practices. Any concerns about our data privacy and security practices, even if unfounded, could damage the reputation of our business and harm our business, financial condition and results of operations.
Any failure or perceived failure, including as a result of deficiencies in our policies, procedures, or measures relating to privacy, data protection, marketing, client communications or information security, by us to comply with laws, rules, regulations, policies, legal or contractual obligations, industry standards, or regulatory guidance relating to data privacy or security, may result in governmental investigations and enforcement actions, litigation, significant fines and penalties or adverse publicity, and could cause our clients and partners to lose trust in us, which could have an adverse effect on our reputation and business. We expect that there will continue to be new proposed laws, rules, regulations and industry standards relating to privacy, data protection, marketing, client communications and information security in the United States, the EU and other jurisdictions, and we cannot determine the impact such future laws, rules, regulations and standards may have on our business. Current and future laws, rules, regulations, standards and other obligations or any changed interpretation of existing laws, rules, regulations or standards could impair our ability to develop and market new services and maintain and grow our client base and increase revenue.
Our client relationships, revenue, business, financial condition, results of operations and prospects may be adversely affected if we experience disruptions in our internet infrastructure, telecommunications or IT systems.
Disruptions in telecommunications, system failures, internet infrastructure issues, computer attacks, natural disasters, terrorism and loss of adequate power could damage our reputation and harm our ability to deliver services to our clients, which could result in client dissatisfaction, a loss of business, damage to our brand and reputation and related reduction of our revenue. We may not be able to consistently maintain active voice and data communications between our various global operations and with our clients due to disruptions in telecommunication networks and power supply, system failures or computer attacks. Any failure in our ability to communicate could result in a disruption in business, which could hinder our performance and our ability to complete projects on time. Such failure to perform our client contracts could have a material adverse effect on our revenue, business, financial condition, results of operations and prospects.
Cybersecurity attacks, breaches or other technological failures or security incidents, and changes in laws and regulations related to the internet or changes in the internet infrastructure itself, may diminish the demand for our services and could have a negative impact on our business.
The future success of our business depends upon the continued use of the internet as a primary medium for commerce, communication and business applications. International, federal state and foreign government bodies or agencies have in the past adopted, and may in the future adopt, laws, rules, regulations and standards affecting the use of the internet as a commercial medium. Changes in these laws, rules, regulations and standards could adversely affect the demand for our services or require us to modify our solutions in order to comply with these changes. In addition, government agencies or private organizations may begin to impose taxes, fees or other charges for accessing the internet or commerce conducted via the internet. These laws or charges could limit the growth of internet-related commerce or communications generally, resulting in reductions in the demand for IT services.
We and our vendors and outsourced data center operations are subject to cybersecurity attacks, breaches or other technological failures which can include ransomware, viruses, worms, malware, phishing attacks, data breaches, denial or degradation of service attacks, social engineering attacks, terrorism, service disruptions, failures during the process of upgrading or replacing software, unauthorized access attempts, including third parties gaining access to systems or client accounts using stolen or inferred credentials and similar malicious programs, behavior, and events. Our systems and our vendors’ systems are also subject to compromise from internal threats, such as theft, misuse, unauthorized access or other improper actions by employees and other third parties with otherwise legitimate access. In addition, we have experienced outages and other delays. A majority of our office employees are working remotely, which may also increase the risk of
30
cyber incidents or data breaches. We could experience a security breach resulting in the unauthorized use or disclosure of certain types of data, including client data, and personal information, that could put individuals at risk of identity theft and financial or other harm, resulting in costs to us, including as related to loss of business, severe reputational damage, reduced demand for our services, regulatory investigations or inquiries, remediation costs, indemnity obligations, legal defense costs and liability to parties who are financially harmed, any of which could have an adverse effect on our business, financial condition, results of operations or prospects. Such events could also compromise our trade secrets or other confidential, proprietary or sensitive information and result in such information being disclosed to third parties and becoming less valuable. A cybersecurity attack could also result in significant degradation or failure of our computer systems, communications systems or any other systems in the performance of our services, which could cause our clients or their employees to suffer delays in their receipt of our services. These delays could cause substantial losses for our clients and their employees, and we could be liable to parties who are financially harmed by those failures. In addition, such failures could cause us to lose revenues, lose clients or damage our reputation, which could have an adverse effect on our business, financial condition, results of operations and prospects.
The frequency and impact of cybersecurity attacks and other malicious internet-based activity continue to increase and evolve in nature. Given the unpredictability of the timing, nature and scope of data security-related incidents and fraudulent activity, there can be no assurance that our efforts will prevent, detect or mitigate system failures, breaches in our systems or other cyber incidents or that we can remediate any such incidents in an effective or timely manner. Furthermore, because the methods of attack and deception change frequently, are increasingly complex and sophisticated, and can originate from a wide variety of sources, including third parties such as vendors and even nation-state actors, despite our reasonable efforts to ensure the integrity of our systems and website, it is possible that we may not be able to anticipate, detect, appropriately react and respond to, or implement effective preventative measures against, all security breaches and failures and fraudulent activity. In the event we experience significant disruptions, we may be unable to repair our systems in an efficient and timely manner. If our services or security measures are perceived as weak or are actually compromised as a result of third-party action, employee or client error, malfeasance, or otherwise, our clients may curtail or stop using our services, our brand and reputation could be damaged, our business may be harmed, and we could incur significant liability. As we increase our client adoption and our brand becomes more widely known and recognized, we may become more of a target for third parties seeking to compromise our security systems or gain unauthorized access to our or our clients’ data.
We also cannot ensure that insurance coverage will be available on acceptable terms or will be available in sufficient amounts to cover one or more large claims related to a security incident or breach, or that the insurer will not deny coverage as to any future claim. The successful assertion of one or more large claims against us that exceed available insurance coverage, or the occurrence of changes in our insurance policies, including premium increases or the imposition of large deductible or co-insurance requirements, could adversely affect our reputation and our business, financial condition, results of operations and prospects.
Risks Related to Our Intellectual Property
We may not secure sufficient intellectual property rights or obtain, maintain, protect, defend or enforce such rights sufficiently to comply with our obligations to our clients or protect our brand and we may not be able to prevent unauthorized use of or otherwise protect our intellectual property, thereby eroding our competitive advantages and harming our business.
Our contracts generally require, and our clients typically expect, that we will assign to them all intellectual property rights associated with the deliverables that we create in connection with our engagements. In order to validly assign these rights to our clients, we must ensure that we obtain all intellectual property rights that our employees and contractors may have in such deliverables. We endeavor to enter into agreements with our employees and contractors in order to limit access to and disclosure of our proprietary information, as well as to assign to us all intellectual property rights they develop in connection with their work for us. However, we cannot ensure that all employees and independent contractors — or any other party who has access to our confidential information or contributes to the development of our intellectual property — have signed assignment of inventions agreements with us validly assigning such rights to us or that we will be able to enforce our rights under any such agreements. Such agreements may not be self-executing or may be breached, and we may not have adequate remedies for any such breach. Given that we operate in a variety of jurisdictions with different and evolving legal regimes, particularly in Latin America and the United States, we face increased uncertainty regarding whether we fully own all intellectual property rights in such deliverables and whether we will be able to avail ourselves of the remedies provided for by applicable law.
31
Further, our current and former employees could challenge our exclusive rights to the software they have developed in the course of their employment. In certain countries in which we operate, an employer is deemed to own the copyrightable work created by its employees during the course, and within the scope, of their employment, but the employer may be required to satisfy additional legal requirements in order to make further use and dispose of such works. We cannot ensure that we have complied with all such requirements or fulfilled all requirements necessary to acquire all rights in software developed by our employees and independent contractors. These requirements are often ambiguously defined and enforced. As a result, we may not be successful in defending against any claim by our current or former employees or independent contractors challenging our exclusive rights over the use and transfer of works those employees or independent contractors created or requesting additional compensation for such works. Protecting our intellectual property is thus a challenge, especially after our employees or our contractors end their relationships with us, and, in some cases, decide to work for our competitors.
Our success also depends in part on our ability to obtain, maintain, protect defend and enforce our intellectual property rights, including our trademarks and certain methodologies, practices, tools and technical expertise we utilize in designing, developing, implementing and maintaining applications and other intellectual property rights. In order to protect our intellectual property rights, we rely upon a combination of nondisclosure and other contractual arrangements as well as trade secret, copyright and trademark laws, though we have not sought patent protection for any of our proprietary technology. However, the steps we take to obtain, maintain, protect, defend and enforce our intellectual property rights may be inadequate. We will not be able to protect our intellectual property rights if we are unable to enforce our rights, detect unauthorized use of our intellectual property rights or, with respect to our trademarks and brand name, obtain registered trademarks in the jurisdictions in which we operate. Other parties, including our competitors, may independently develop similar technology, duplicate our services or design around our intellectual property and, in such cases, we may not be able to assert our intellectual property rights against such parties and our business, financial condition, results of operation or prospects may be harmed. Any trademarks or other intellectual property rights that we have or may obtain may be challenged or circumvented by others or invalidated, narrowed in scope or held unenforceable through administrative process or litigation. Furthermore, legal standards relating to the validity, enforceability and scope of protection of intellectual property rights are uncertain. Trademark, trade secret and other intellectual property protection may not be available to us in every country in which our services are available. In addition, the laws of some foreign countries may not be as protective of intellectual property rights as those in the United States, and mechanisms for enforcement of intellectual property rights may be inadequate. Moreover, policing unauthorized use of our technologies, trade secrets and intellectual property may be difficult, expensive and time-consuming, particularly in foreign countries where the laws may not be as protective of intellectual property rights as those in the United States and where mechanisms for enforcement of intellectual property rights may be weak. Accordingly, despite our efforts, we may be unable to prevent third parties from infringing, misappropriating or otherwise violating our intellectual property rights.
We regard our intellectual property, including our trademarks, trade names and service marks, as having significant value, and our brand is an important factor in the marketing of our services. We intend to rely on both registration and common law protection for our trademarks. We own trademark registrations for the AGILETHOUGHT trademark and logo in the United States. We also own pending trademark applications and registrations for the AGILETHOUGHT trademark in other jurisdictions in which we operate or may operate in the future; for example, Mexico, Brazil, Canada, Chile, Argentina, Costa Rica and Colombia.
We cannot assure you that any future trademark registrations will be issued from pending or future trademark applications or that any registered trademarks will be enforceable or provide adequate protection of our proprietary rights, including with respect to branding. Our trademarks or trade names have in the past and may in the future be opposed, challenged, infringed, circumvented, diluted, declared generic, lapsed or determined to be infringing on other marks. For example, Sistemas Globales S.A. d/b/a Globant has opposed our application for AGILETHOUGHT in Argentina, based on its prior registration for AGILE PODS (Reg. No. 2706379). Opposition proceedings typically take 3-4 years to resolve in Argentina, and we cannot assure you that our application will survive such proceedings. We also own registrations for AGILETHOUGHT INSIGHTFUL SOLUTIONS :: INNOVATIVE TECHNOLOGIES and HUMAN POTENTIAL, DIGITALLY DELIVERED in the United States. During the trademark registration process, we have and may in the future receive Office Actions or other objections from the U.S. Patent and Trademark office, or the USPTO, or equivalent foreign offices objecting to the registration of our trademarks. Although we are given an opportunity to respond to those objections, we may be unable to overcome such objections. Additionally, in the USPTO and equivalent foreign offices in many jurisdictions, third parties are given an opportunity to oppose pending trademark applications and to seek the cancellation of registered trademarks. Opposition or cancellation proceedings may be filed against our trademarks, and our trademarks may not survive such proceedings.
32
The value of our intellectual property could diminish if others assert rights in or ownership of our trademarks and other intellectual property rights, or trademarks that are similar to our trademarks. We may be unable to successfully resolve these types of conflicts to our satisfaction. In some cases, litigation or other actions may be necessary to protect, defend or enforce our trademarks and other intellectual property rights. We may not be able to protect our rights to our trademarks and trade names, which we need for name recognition by our current and potential clients. We may be subject to liability, required to enter into costly license agreements, required to rebrand our services or prevented from selling some of our services if third parties successfully oppose or challenge our trademarks or successfully claim that we infringe or otherwise violate their trademarks or other intellectual property rights. At times, competitors may adopt trade names or trademarks similar or identical to ours, thereby impeding our ability to build brand identity and possibly leading to market confusion. In addition, there could be potential trademark infringement claims brought by owners of other registered trademarks or trademarks that incorporate variations of our registered or unregistered trademarks or trade names. If we are unable to obtain a registered trademark, establish name recognition based on our trademarks and trade names or otherwise enforce or protect our proprietary rights related to our trademarks or other intellectual property, we may not be able to compete effectively, which could result in substantial costs and diversion of resources and could adversely impact our business, financial condition, results of operations and prospects.
In order to protect our intellectual property rights, we may be required to spend significant resources to monitor and enforce these rights. Litigation brought to protect and enforce our intellectual property rights could be costly, time-consuming and distracting to management and could result in the impairment or loss of portions of our intellectual property. Furthermore, our efforts to enforce our intellectual property rights may be met with defenses, counterclaims and countersuits attacking the validity and enforceability of our intellectual property rights. An adverse determination of any litigation proceedings could put our intellectual property at risk of being invalidated or interpreted narrowly. Furthermore, because of the substantial amount of discovery required in connection with intellectual property litigation, there is a risk that some of our confidential or sensitive information could be compromised by disclosure in the event of litigation. In addition, during the course of litigation there could be public announcements of the results of hearings, motions or other interim proceedings or developments. If securities analysts or investors perceive these results to be negative, it could have a substantial adverse effect on the price of our common stock. Negative publicity related to a decision by us to initiate such enforcement actions against a client or former client, regardless of its accuracy, may adversely impact our other client relationships or prospective client relationships, harm our brand and business and could cause the market price of our common stock to decline. Our failure to obtain, maintain, protect, defend and enforce our intellectual property rights could adversely affect our brand and our business, financial condition, results of operations and prospects.
If we are unable to protect the confidentiality of our proprietary information, our business and competitive position may be harmed.
We consider proprietary trade secrets and confidential know-how to be important to our business. However, trade secrets and confidential know-how can be difficult to maintain as confidential. We cannot guarantee that we have entered into confidentiality agreements with each party that has or may have had access to our proprietary information, know-how and trade secrets. Moreover, no assurance can be given that any confidentiality agreements will be effective in controlling access to and distribution, use, misuse, misappropriation, reverse engineering or disclosure of our proprietary information, know-how and trade secrets. Such agreements may also be breached, and we may not have adequate remedies, including equitable remedies, for any such breach. We also seek to preserve the integrity and confidentiality of our data, trade secrets and know-how by maintaining physical security of our premises and physical and electronic security of our IT systems. While we have confidence in such systems and tools, agreements or security measures may be breached.
Monitoring unauthorized uses and disclosures is difficult, and we do not know whether the steps we have taken to protect our proprietary technologies will be effective. We cannot guarantee that our trade secrets and other proprietary and confidential information have not or will not be disclosed or that competitors have not or will not otherwise gain access to our trade secrets. Current or former employees, consultants, contractors and advisers may unintentionally or willfully disclose our confidential information to competitors, and confidentiality agreements may not provide an adequate remedy in the event of unauthorized disclosure of confidential information. Enforcing a claim that a third party illegally obtained and used trade secrets or confidential know-how could be expensive, time consuming and unpredictable. Trade secret violations are often a matter of state law, and the enforceability of confidentiality agreements and the criteria for protection of trade secrets may vary from jurisdiction to jurisdiction. In addition, the laws of foreign countries may not protect our intellectual property or other proprietary rights to the same extent as the laws of the United States. Consequently, we may be unable to prevent our trade secrets from being exploited abroad, which could affect our ability to expand to foreign markets or require costly efforts to protect our proprietary rights. Furthermore, if a competitor lawfully obtained or independently developed any of our trade secrets, we would have no right to prevent such competitor from using that
33
technology or information, which could harm our competitive position. If the steps taken to maintain our trade secrets are inadequate, we may have insufficient recourse against third parties for misappropriating our trade secrets.
Our failure to secure, protect and enforce our trade secrets and other confidential business information could substantially harm the value of our brand and business. The theft or unauthorized use or publication of our trade secrets and other confidential business information could reduce the differentiation of our services, substantially and adversely impact our commercial operations and harm our business. Costly and time-consuming litigation could be necessary to enforce and determine the scope of our trade secret rights and related confidentiality and nondisclosure provisions. If we fail to obtain or maintain trade secret protection, or if our competitors otherwise obtain our trade secrets, our competitive market position could be materially and adversely affected. In addition, some courts are less willing or unwilling to protect trade secrets and agreement terms that address non-competition are difficult to enforce in many jurisdictions and might not be enforceable in certain cases. Any of the foregoing could materially and adversely affect our business, financial condition and results of operations.
We may be subject to claims by third parties asserting that we, our employees or companies we have acquired, have infringed, misappropriated or otherwise violated their intellectual property, or claiming ownership of what we regard as our own intellectual property, which may be costly and time consuming. Unfavorable results of legal and administrative proceedings could have a material adverse effect on our business, financial condition, results of operations and prospects.
We may be subject to claims by third parties that we, our employees or companies that we have acquired, have infringed, misappropriated or otherwise violated the intellectual property of such third parties. We cannot assure you that the services and technologies that we have developed, are developing or may develop in the future will not infringe, misappropriate or otherwise violate existing or future intellectual property rights owned by third parties. Our employees may infringe, misappropriate or otherwise violate the intellectual property of their former employers. Many of our employees were previously employed at our competitors or potential competitors. Some of these employees executed proprietary rights, non-disclosure and non-competition agreements in connection with such previous employment. Although we try to ensure that our employees do not use the proprietary information, know-how or trade secrets of others in their work for us, we may be subject to claims that we or these employees have used or disclosed such information of any such employee’s former employer. Time-consuming and expensive litigation may be necessary to defend against these claims. In addition, we are subject to additional risks as a result of our recent acquisitions and any future acquisitions we may complete. The developers of the technology that we have acquired or may acquire may not have appropriately created, obtained, protected, maintained or enforced intellectual property rights in such technology. Indemnification and other rights under acquisition documents may be limited in term and scope and may therefore provide little or no protection from these risks.
If we fail in prosecuting or defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel or sustain damages. Our efforts to enforce our intellectual property rights may be met with defenses, counterclaims, and countersuits attacking the validity and enforceability of our intellectual property rights, and if such defenses, counterclaims, or countersuits are successful, we could lose valuable intellectual property rights. Such intellectual property rights could be awarded to a third party. Regardless, policing unauthorized use of our technology is difficult and we may not detect all such use. Even if we successfully prosecute or defend against such claims, litigation could result in substantial costs, damage to our brand and reputation and distraction of management and key personnel. This type of litigation or proceeding could substantially increase our operating losses and reduce our resources available for development activities. We may not have sufficient financial or other resources to adequately conduct such litigation or proceedings. Some of our competitors may be able to sustain the costs of such litigation or proceedings more effectively than we can because of their substantially greater financial resources. Uncertainties resulting from the initiation and continuation of intellectual property-related litigation or proceedings could adversely affect our ability to compete in the marketplace.
In addition, we may be unsuccessful in executing intellectual property assignment agreements with each party who, in fact, conceives or develops intellectual property that we regard as our own. The assignment of intellectual property rights may not be self-executing, or the assignment agreements may be breached, and we may be forced to bring claims against third parties, or defend claims that they may bring against us, to determine the ownership of what we regard as our intellectual property. Such claims could have a material adverse effect on our business, financial condition, results of operations, and prospects.
34
If we are sued for alleged infringement, misappropriation or other violations of the intellectual property rights of others, our reputation, business, financial condition, results of operations and prospects may be adversely affected.
Our success largely depends on our ability to use and develop our technology, tools, code, methodologies and services without infringing, misappropriating or otherwise violating the intellectual property rights of third parties, including patents, copyrights, trade secrets and trademarks. However, we may not be aware that our products or services are infringing, misappropriating or otherwise violating third-party intellectual property rights. Third parties may claim that we are infringing, misappropriating or otherwise violating, or have infringed, misappropriated or otherwise violated, their intellectual property rights and we may be subject to litigation involving claims of infringement, misappropriation or other violation of intellectual property rights of third parties. As competition in our market grows, the possibility of infringement, misappropriation and other intellectual property claims against us increases. Parties making infringement claims may be able to obtain an injunction to prevent us from delivering our services or using technology involving the allegedly infringing intellectual property. Even if we were to prevail in such a dispute, intellectual property litigation can be expensive and time-consuming and could divert the attention of our management and key personnel from our business. A successful infringement claim against us, whether with or without merit, could, among others things, require us to pay substantial damages (including treble damages if we are found to have willfully infringed third-party intellectual property), develop substitute non-infringing technology, or rebrand our name or enter into royalty or license agreements that may not be available on favorable or commercially reasonable terms, if at all, and could require us to cease making, licensing or using products that may have infringed, misappropriated or otherwise violated a third party’s intellectual property rights. Protracted litigation could also result in existing or potential clients deferring or limiting their purchase or use of our services until resolution of such litigation, or could require us to indemnify our clients against infringement claims in certain instances. In addition, during the course of litigation there could be public announcements of the results of hearings, motions or other interim proceedings or developments, which could, among other things, distract our management and employees from our business. Additionally, if securities analysts or investors perceive these results to be negative, it could have a substantial adverse effect on the price of our common stock. Any intellectual property claim or litigation, whether we ultimately win or lose, could cause us to incur significant expenses, damage our reputation and materially adversely affect our business, financial condition, results of operations and prospects.
In addition, we typically indemnify clients who purchase our services and solutions against potential infringement, misappropriation or other violations of intellectual property rights, which subjects us to the risk of indemnification claims. Some of our customer agreements provide for uncapped liability and some indemnity provisions survive termination or expiration of the applicable agreement. These claims may require us to initiate or defend protracted and costly litigation on behalf of our clients, regardless of the merits of these claims, and are often not subject to liability limits or exclusion of consequential, indirect or punitive damages. If any of these claims succeed, we may be forced to pay damages on behalf of our clients, redesign or cease offering our allegedly infringing services or solutions, or obtain licenses for the intellectual property such services or solutions allegedly infringe. Large indemnity payments could harm our business, financial condition, results of operations and prospects. If we cannot obtain all necessary licenses on commercially reasonable terms, our clients may stop using our services or solutions.
We use third-party software, hardware and software-as-a-service, or SaaS, technologies from third parties that may be difficult to replace or that may cause errors or defects in, or failures of, the services or solutions we provide.
We rely on software, hardware and both hosted and cloud-based SaaS applications from various third parties to deliver our services and solutions. If any of these software, hardware or SaaS applications become unavailable due to extended outages, interruptions, system failures, cybersecurity attacks, software or hardware errors, financial insolvency or natural disasters or because they are no longer available on commercially reasonable terms, or at all, we could experience delays in the provisioning of our services until equivalent technology is either developed by us, or, if available from a third party, is identified, obtained and integrated, which could increase our expenses or otherwise harm our business. In addition, any errors or defects in or failures of this third-party software, hardware or SaaS applications could result in errors or defects in or failures of our services and solutions, which could harm our business, be costly to correct, and subject us to breach of contract claims with our clients. Many of these providers attempt to impose limitations on their liability for such errors, defects or failures, and if enforceable, we may have additional liability to our clients or third-party providers that could harm our reputation and increase our operating costs.
In the future we may identify additional third-party intellectual property we may need to license in order to engage in our business, including to develop or commercialize new products or services. However, such licenses may not be available on acceptable terms or at all. The licensing or acquisition of third-party intellectual property rights is a competitive area, and other companies may pursue strategies to license or acquire third-party intellectual property rights that we may
35
consider attractive or necessary. Other companies may have a competitive advantage over us due to their size, capital resources and greater development or commercialization capabilities. In addition, companies that perceive us to be a competitor may be unwilling to assign or license rights to us on reasonable pricing terms or at all. If we are unable to enter into the necessary licenses on acceptable terms or at all, it could adversely impact our business, financial condition, and results of operations.
We incorporate third-party open source software into our client deliverables and our failure to comply with the terms of the underlying open source software licenses could adversely impact our clients or our ability to sell our services, subject us to litigation or create potential liability.
Our client deliverables often contain software licensed by third parties under so-called “open source” licenses, including the GNU General Public License, or GPL, the GNU Lesser General Public License, or LGPL, the BSD License and others, and we expect to continue to incorporate open source software in our services in the future. Moreover, we cannot ensure that we have not incorporated open source software in our services in a manner that is inconsistent with the terms of the applicable license or our current policies and procedures. There have been claims against companies that distribute or use open source software in their products and services asserting that the use of such open source software infringes the claimants’ intellectual property rights. As a result, we and our clients could be subject to suits by third parties claiming that what we believe to be licensed open source software infringes, misappropriates or otherwise violates such third parties’ intellectual property rights, and we are generally required to indemnify our clients against such claims. Additionally, if an author or other third party that distributes such open source software were to allege that we had not complied with the conditions of one or more of these licenses, we or our clients could be required to incur significant legal expenses defending against such allegations and could be subject to significant damages, enjoined from the sale of our services that contain the open source software and required to comply with onerous conditions or restrictions on these services, which could disrupt the distribution and sale of these services. Litigation could be costly for us to defend, have a negative effect on our business, financial condition, results of operations and prospects, or require us to devote additional research and development resources to change our services. Use of open source software may entail greater risks than use of third-party commercial software, as open source licensors generally do not provide warranties or other contractual protections regarding infringement claims or the quality of the code, including with respect to security vulnerabilities. In addition, certain open source licenses require that source code for software programs that interact with such open source software be made available to the public at no cost and that any modifications or derivative works to such open source software continue to be licensed under the same terms as the open source software license, and we may be subject to such terms.
We cannot ensure that we have effectively monitored our use of open source software or that we are in compliance with the terms of all applicable open source licenses. The terms of many open source licenses have not been interpreted by courts in relevant jurisdictions, and there is a risk that these licenses could be construed in a way that could impose certain conditions or restrictions on our clients’ ability to use the software that we develop for them and operate their businesses as they intend. The terms of certain open source licenses may require us or our clients to release the source code of the software we develop for our clients and to make such software available under the applicable open source licenses. In the event that portions of client deliverables are determined to be subject to an open source license, we or our clients could be required to publicly release the affected portions of source code or re-engineer all, or a portion of, the applicable software. Disclosing our proprietary source code could allow our clients’ competitors to create similar products with lower development effort and time and ultimately could result in a loss of sales for our clients. Any of these events could create liability for us to our clients and damage our reputation, which could have a material adverse effect on our revenue, business, financial condition, results of operations and prospects and the market price of our shares of common stock.
Risks Related to Our International Operations
Our business, financial condition, results of operations and prospects could be adversely affected by negative publicity about offshore outsourcing or anti-outsourcing legislation in the countries in which our clients operate.
Concerns that offshore outsourcing has resulted in a loss of jobs, sensitive technologies and information to foreign countries have led to negative publicity concerning outsourcing in some countries. Many organizations and public figures in the United States have publicly expressed concern about a perceived association between offshore outsourcing IT service providers and the loss of jobs. Current or prospective clients may elect to perform services that we offer, or may be discouraged from transferring these services to offshore providers, to avoid any negative perceptions that may be associated with using an offshore provider or for data privacy and security concerns. As a result, our ability to compete effectively with competitors that operate primarily out of facilities located in the United States could be harmed.
36
Legislation enacted in the United States and certain other jurisdictions in which we operate and any future legislation in countries in which we have clients that restricts the performance of services from an offshore location could also materially adversely affect our business, financial condition, results of operations and prospects.
General economic conditions in Mexico may have an adverse effect on our operations and business.
We have key facilities and personnel located in Mexico. The Mexican market and economy are influenced by economic and market conditions in other countries. Moreover, financial turmoil in any emerging market country tends to adversely affect prices in capital markets of emerging market countries, including Mexico, as investors move their money to more stable, developed markets. Financial problems or an increase in the perceived risks associated with investing in emerging economies could dampen foreign investment in Mexico and adversely affect the Mexican economy. A loss of investor confidence in the financial systems of other emerging markets may cause volatility in Mexican financial markets and to the Mexican economy in general, which may have an adverse effect on our business and operations. The economy in Mexico remains uncertain. Weak economic conditions could result in lower demand for our services, resulting in lower sales, revenue, earnings and cash flows.
Government intervention in the Mexican economy could adversely affect the economy and our results of operations or financial condition.
The ability of companies to efficiently conduct their business activities is subject to changes in government policy or shifts in political attitudes within Mexico that are beyond our control. Government policy may change to discourage foreign investment, nationalization of industries may occur or other government limitations, restrictions or requirements not currently foreseen may be implemented. During recent years, the Mexican government has frequently intervened in the Mexican economy, including through discretionary interventions on government spending.
For example, in January 2019, Mexico’s president, Andres Manuel Lopez Obrador, officially suspended the construction of the partly-built $13.0 billion dollar Mexico City International Airport. This decision impacted not only the directly involved construction and development companies, advisors and contractors, but also investors and debt holders who had financially supported the project.
Interventions by the Mexican government, such as that relating to the new Mexico City International Airport, can have an adverse impact on the level of foreign investment in Mexico, the access of companies with significant Mexican operations to the international capital markets and Mexico’s commercial and diplomatic relations with other countries and, consequently, could adversely affect our business, financial condition, results of operations and prospects.
A significant number of individuals in our workforce in Mexico are employed by third-party service providers. If our third-party service providers fail to comply with applicable Mexican law, or if we are unable to comply with recent changes to Mexican law requiring reclassification of these individuals as our employees, our business, financial condition and results of operations could be materially adversely affected.
We historically have generally utilized specialized third-party consulting services to support specific developments within the delivery of our specialized solutions to customers. Although our service providers are legally and contractually required to comply with applicable labor, tax and social security laws, it is a challenge to monitor our service providers’ compliance with such laws given the significant number of individuals employed by our service providers and the administrative complexities involved. Such laws are complex and subject to interpretation, which may vary from time to time, and it is also possible that a governmental authority could ultimately determine that we are subject to liability imposed under former and/or applicable Mexican law and regulations regarding our past and current commercial relationship with third-party consultants if such relationships are found to be non-compliant, and/or to the extent such third-party consultants do not absorb any liabilities imposed for such non-compliance, and our business and financial condition could be materially adversely affected. We also cannot provide any assurance that the service providers’ employees will not initiate legal actions against us seeking indemnification from us as the ultimate beneficiary of their services.
In April 2021, the Mexican government passed a new law that will require us to integrate our third-party service structure into our own workforce. The new law allows tax deductions from third-party service expenses only if they meet certain requirements, which are still to be fully defined. As of August 31, 2021, we finalized the conversion of 100% of the third-party consultants in Mexico into full time employees (“FTE´s”) in order to comply with the new law and as of December 31, 2022 we had 377 service export resources that are not FTEs. We cannot assure you that our compliance efforts with respect to the new law or the new law’s interpretation and application by governmental authorities will not result in additional costs or liabilities to us or other adverse impacts on our operating performance or will not make it more
37
difficult for us to establish, maintain and grow client relationships. We also cannot assure you that the Mexican government will not pursue further regulatory changes that may adversely affect our business, financial condition, results of operations and prospects. In addition, we cannot assure the Mexican government will not pursue further labor related laws that can result in further significantly material impact to us, nor that it could not apply retroactive reviews and assess the structure we have used in the past.
The Mexican government may order salary increases to be paid to employees in the private sector, which could increase our operating costs and adversely affect our results of operations.
In the past, the Mexican government has passed laws, regulations and decrees requiring companies in the private sector to increase wages and provide specified benefits to employees, and may do so again in the future. Mexican employers, both in the public and private sectors, have experienced significant pressure from their employees and labor organizations to increase wages and to provide additional employee benefits. The Mexican government, as a result, increased the minimum salary by 16% in January 2019.
If future salary increases in the Mexican peso exceed the pace of the devaluation of the Mexican peso, such salary increases could have a material adverse effect on our expenses and business, financial condition, results of operations and prospects.
Corruption in Mexico could have an adverse effect on our business and operations.
Corruption could result in our competitors having an unfair advantage over us in securing business. In addition, false accusations of corruption or other alleged wrongdoing by us or our officers or directors may be spread by newspapers, competitors or others to gain a competitive advantage over us or for other reasons. Mexican press reports have also alleged selective investigations and prosecutions by the government to further its interests. In the event we become the target of corruption allegations, we may need to cease or alter certain activities or embark on expensive litigation to protect our business and employees, which could adversely affect our business, financial condition, results of operations and prospects.
Doing business with government clients could negatively impact our reputation, which in turn could adversely affect our business, financial condition, results of operations, and prospects.
While our current contracts with governmental entities, including the Mexican federal government and related entities, does not constitute a substantial portion of our revenue, nor do we expect it to constitute a substantial portion of our revenue in the future, there are risks associated with doing business with government clients. Agreements with governmental entities may be subject to periodic funding approval. Funding reductions or delays could adversely impact public sector demand for our products and services. Also, some agreements may contain provisions allowing the client to terminate without cause and providing for higher liability limits for certain losses. In addition, government contracts are generally subject to audits and investigations by government agencies. If the government discovers improper or illegal activities or contractual non-compliance (including improper billing), we may be subject to various civil and criminal penalties and administrative sanctions, which may include termination of contracts, forfeiture of profits, suspension of payments, fines and suspensions or debarment from doing business with the government, which could negatively impact our reputation, which in turn could adversely affect our business, financial condition, results of operations and prospects.
If relations between the United States and foreign governments deteriorate, it could cause our business or potential target businesses or their goods and services to become less attractive, and our business, financial condition, results of operations and prospects may be adversely affected.
The relationship between the United States and foreign governments, including Mexico, could be subject to sudden fluctuation and periodic tension. For instance, the United States may announce its intention to impose quotas on certain imports. Such import quotas may adversely affect political relations between the two countries and result in retaliatory countermeasures by the foreign government in industries that may affect our ultimate target business. The Biden administration in the United States has recently proposed far-ranging federal tax legislation in the United States that could impact business like ours with substantial presences in Mexico that provide extensive services in the United States .Changes in political conditions in foreign countries and changes in the state of U.S. relations with such countries are difficult to predict and could adversely affect our operations or cause our business or potential target businesses or their goods and services to become less attractive. Because we are not limited to any specific industry, there is no basis for you to evaluate the possible extent of any impact on our ultimate operations if relations are strained between the United States and a foreign country in which we acquire a target business or move our principal manufacturing or service operations.
38
Our business, financial condition, results of operations and prospects may be materially adversely affected if general economic conditions in Latin America and the United States or the global economy worsen.
We derive a significant portion of our revenue from clients located in Latin America and the United States. The IT services industry is particularly sensitive to the economic environment, and tends to decline during general economic downturns. If the United States or Latin American economies weaken or slow, pricing for our services may be depressed and our clients may reduce or postpone their technology spending significantly, which may, in turn, lower the demand for our services, negatively affect our revenue and profitability and have an adverse effect on our business, financial condition, results of operations and prospects.
Our business is dependent to a certain extent upon the economic conditions prevalent in the United States and Latin American countries in which we operate. Latin American countries have historically experienced uneven periods of economic growth, as well as recession, periods of high inflation and economic instability. As a consequence of adverse economic conditions in global markets and diminishing commodity prices, the economic growth rates of the economies of many Latin American countries have slowed and some have entered mild recessions. Adverse economic conditions in any of these countries could have a material adverse effect on our business, financial condition, results of operations and prospects. To the extent that the prospect of national debt defaults in Latin America and other adverse economic conditions continue or worsen, they would likely have a negative effect on our business. If we are unable to successfully anticipate changing economic and political conditions affecting the markets in which we operate, we may be unable to effectively plan for or respond to those changes, and our business, financial condition, results of operations and prospects could be adversely affected.
Fluctuations in currency exchange rates and increased inflation could materially adversely affect our business, financial condition, results of operations and prospects.
We have offices located in Mexico, Costa Rica, Brazil, Argentina and the United States. As a result of the international scope of our operations, fluctuations in exchange rates, particularly between the Mexican peso and the U.S. dollar, may adversely affect us. The value of our common stock may be affected by the foreign exchange rate between the U.S. dollar and the Mexican peso, and between those currencies and other currencies in which our revenues and assets may be denominated. For example, a depreciation of the Mexican peso relative to the U.S. dollar will temporarily impact our operations in the following ways: (i) the operations in the United States that have a nearshore cost component will benefit at the gross margin level from a lower U.S. dollar denominated cost until the point where salary inflation in Mexico offsets that benefit; and (ii) on the Mexico operations side, a depreciation of the Mexican peso will result in an overall reduction of the value of our business in Mexico when translated to U.S. dollars for consolidation purposes, as the same number of Mexican pesos will now represent fewer U.S. dollars. While our current exposure is relatively balanced at the operating profit (loss) level — meaning the benefit on the U.S. operations from a Mexican peso depreciation on operating profit (loss) would largely offset the impact of our operating income (loss) of a reduction in the value of our business in Mexico, this may change in the future as our nearshore operations grow. If our operations in the United States and Mexico grow at different rates, fluctuations in the exchange rate between the Mexican peso and U.S. dollar could have negative impacts on our financial condition and results of operations and could materially adversely affect the market price of our common stock.
The banking and financial systems in less developed markets where we hold funds remain less developed than those in some more developed markets, and a banking crisis could place liquidity constraints on our business and materially adversely affect our business, financial condition, results of operations and prospects.
We have cash in banks in countries such as Mexico, Brazil, Argentina and Costa Rica, where the banking sector remains subject to periodic instability, banking and other financial systems generally do not meet the banking standards of more developed markets, and bank deposits made by corporate entities are not insured. A banking crisis, or the bankruptcy or insolvency of banks through which we receive or with which we hold funds, particularly in Mexico and Brazil, may result in the loss of our deposits or adversely affect our ability to complete banking transactions in that region, which could materially adversely affect our business, financial condition, results of operations and prospects.
Our international operations involve risks that could increase our expenses, adversely affect our results of operations and require increased time and attention from our management.
Managing a business, operations, personnel or assets in another country is challenging and costly. As of December 31, 2022, we had 2,504 employees and contractors, approximately 89.9% of whom work in nearshore offices in Mexico and
39
other Latin American countries. We have operations in a number of countries, including Mexico and the United States, and we serve clients primarily in the United States and Latin America. As a result, we are subject to risks inherently associated with international operations. Our global operations expose us to numerous and sometimes conflicting legal, tax and regulatory requirements, and violations or unfavorable interpretation by the respective authorities of these regulations could harm our business. Risks associated with international operations include difficulties in enforcing contractual rights, potential difficulties in collecting accounts receivable, the burdens of complying with a wide variety of foreign laws, repatriation of earnings or capital and the risk of asset seizures by foreign governments. In addition, we may face competition in other countries from companies that may have more experience with operations in such countries or with international operations. Such companies may have long-standing or well-established relationships with desired clients, which may put us at a competitive disadvantage. We may also face difficulties integrating new facilities in different countries into our existing operations, as well as integrating employees that we hire in different countries into our existing corporate culture. Our international expansion plans may be unsuccessful and we may not be able to compete effectively in other countries. Even with a seasoned and experienced management team, the costs and difficulties inherent in managing cross-border business operations, personnel and assets can be significant (and much higher than in a purely domestic business) and may negatively impact our financial and operational performance. These factors could impede the success of our international expansion plans and limit our ability to compete effectively in other countries.
From time to time, some of our employees and contractors spend significant amounts of time at our clients’ facilities, often located outside our employees’ and contractors’ countries of residence, which exposes us to certain risks.
Some of our projects require a portion of the work to be undertaken at our clients’ facilities, which are often located outside our employees’ and contractors’ countries of residence. The ability of our employees and contractors to work in such locations may depend on different countries’ regulations relating to international travel, which may eliminate or severely curtail our employees’ and contractors’ ability to work on-site at clients’ facilities, as well as our employees’ and contractors’ ability to obtain the required visas and work permits, which process can be lengthy and difficult. Immigration laws are subject to legislative changes, as well as to variations in standards of application and enforcement due to political forces and economic conditions. In addition, we may become subject to taxation in jurisdictions where we would not otherwise be so subject as a result of the time that our employees spend in any such jurisdiction in any given year. While we seek to monitor the number of days that our employees spend in each country or state to avoid subjecting ourselves to any such taxation, there can be no assurance that we will be successful in these efforts.
We also incur risks relating to our employees and contractors working at our clients’ facilities, including: claims of misconduct, negligence or intentional malfeasance on the part of our employees or contractors. Some or all of these claims may lead to litigation and these matters may cause us to incur negative publicity with respect to these alleged problems. It is not possible to predict the outcome of these lawsuits or any other proceeding, and our insurance may not cover all claims that may be asserted against us.
If we are faced with immigration or work permit restrictions in any country where we currently have personnel onsite at a client location or would like to expand our delivery footprint, then our business, financial condition, results of operations and prospects may be adversely affected.
The success of our business is dependent on our ability to attract and retain talented and experienced professionals and be able to mobilize them to meet our clients’ needs. Immigration laws in the countries we operate in are subject to legislative changes, as well as to variations in the standards of application and enforcement due to political forces and economic conditions. A few countries have introduced new provisions and standards in immigration law which can impact our ability to provide services in those countries due to restrictive policies and additional costs involved. Our and our contractors’ future inability to obtain or renew sufficient work permits and/or visas due to the impact of these regulations, including any changes to immigration, work permit and visa regulations in jurisdictions such as the United States, could have a material adverse effect on our business, financial condition, results of operations and prospects. It is difficult to predict the political and economic events that could affect immigration laws, or the restrictive impact they could have on obtaining or renewing work visas for our employees or contractors.
Latin American governments have exercised and continue to exercise significant influence over the economies of the countries where we operate, which could adversely affect our business, financial condition, results of operations and prospects.
Historically, governments in Latin America have frequently intervened in the economies of their respective countries and have occasionally made significant changes in policy and regulations. Governmental actions to control inflation and
40
other policies and regulations have often involved price controls, currency devaluations, capital controls and tariffs. Our business, financial condition, results of operations and prospects may be adversely affected by:
•changes in government policies or regulations, including such factors as exchange rates and exchange control policies;
•inflation rates and measures taken by the governments of these countries to control or otherwise address inflation;
•interest rates;
•tariff and inflation control policies;
•price control policies;
•liquidity of domestic capital and lending markets;
•electricity rationing;
•tax policies, royalty and tax increases and retroactive tax claims; and
•other political, diplomatic, social and economic developments in or affecting the countries where we operate.
Our business, financial condition, results of operations and prospects may be adversely affected by the various conflicting legal and regulatory requirements imposed on us by the countries where we operate.
Since we maintain operations and provide services to clients throughout the world, we are subject to numerous, and sometimes conflicting, legal requirements on matters as diverse as import/export controls, content requirements, trade restrictions, tariffs, taxation, sanctions, government affairs, anti-bribery, whistle blowing, internal and disclosure control obligations, data protection and privacy and labor relations. Our failure to comply with these regulations in the conduct of our business could result in fines, penalties, criminal sanctions against us or our officers, disgorgement of profits, prohibitions on doing business, unfavorable publicity, adverse impact on our reputation and allegations by our clients that we have not performed our contractual obligations. Due to the varying degree of development of the legal systems of the countries in which we operate, local laws might be insufficient to defend us and preserve our rights.
We are also subject to risks relating to compliance with a variety of national and local laws including multiple tax regimes, labor laws, employee health safety and wages and benefits laws. Many of our employees and consultants, including members of our senior management team, perform services for us in multiple jurisdictions, making us subject to multiple, and sometimes conflicting labor law regimes. We may, from time to time, be subject to litigation or administrative actions resulting from claims against us by current or former employees or contractors individually or as part of class actions, including claims of wrongful terminations, discrimination, misclassification, improper income tax or other withholding or other violations of labor law or related tax laws or other alleged conduct. We may also, from time to time, be subject to litigation resulting from claims against us by third parties, including claims of breach of non-compete and confidentiality provisions of our employees’ former employment agreements with such third parties. Our failure to comply with applicable regulatory requirements could have a material adverse effect on our revenue, business, financial condition, results of operations and prospects.
Foreign, national and local governments may also adopt new laws, regulations or requirements, or make changes to existing laws or regulations, that could impact the demand for, or value of, our services. If we are unable to adapt the solutions we deliver to our clients to changing legal and regulatory standards or other requirements in a timely manner, or if our solutions fail to allow our clients to comply with applicable laws and regulations, our clients may lose confidence in our services and could switch to services offered by our competitors, or threaten or bring legal actions against us, and our business, financial condition, results of operations and prospects may be adversely affected.
Many commercial laws and regulations in Latin America are relatively new and have been subject to limited interpretation. As a result, their application can be unpredictable. Government authorities have a high degree of discretion in certain countries in which we have operations and at times have exercised their discretion in ways that may be perceived as selective or arbitrary, and sometimes in a manner that is seen as being influenced by political or commercial considerations. These governments also have the power, in certain circumstances, to interfere with the performance of, nullify or terminate contracts. Selective or arbitrary actions against others have included withdrawal of licenses, sudden and unexpected tax audits, criminal prosecutions and civil actions. Federal and local government entities have also used common defects in documentation as pretexts for court claims against others and other demands to invalidate and/or to void transactions, possibly for political purposes. In this environment, our competitors could receive preferential treatment from the government, potentially giving them a competitive advantage. Selective or arbitrary government action could materially adversely affect our business, financial condition, results of operations and prospects.
41
Changes and uncertainties in the tax system in the countries in which we have operations could materially adversely affect our business, financial condition, results of operations and prospects.
We conduct business globally and file income tax returns in multiple jurisdictions. Our consolidated effective income tax rate could be materially adversely affected by several factors, including: changing tax laws, regulations and treaties, or the interpretation thereof (including based on advice from our tax advisers); tax policy initiatives and reforms under consideration (such as those related to the Organization for Economic Co-Operation and Development’s, Base Erosion and Profit Shifting Project and other initiatives); the practices of tax authorities in jurisdictions in which we operate; the resolution of issues arising from tax audits or examinations and any related interest or penalties; and our income before taxes being lower than anticipated in countries with lower statutory tax rates and higher than anticipated in countries with higher statutory tax rates. Such changes may include the taxation of operating income, investment income, dividends received or, in the specific context of withholding tax, dividends paid, and changes in deferred tax assets and liabilities.
In particular, there have been significant changes to the taxation systems in Latin American countries in recent years as the authorities have gradually replaced or introduced new legislation regulating the application of major taxes such as corporate income tax, value-added tax, corporate property tax, personal income taxes and payroll taxes.
There have been significant changes to United States tax laws in recent years, some of which are being reconsidered by Congress and interpretations of which are being considered by the U.S. Internal Revenue Service and the courts. Moreover, legislation in the United States has recently been proposed that may result in additional significant changes to United States tax laws.
We are unable to predict what tax reforms may be proposed or enacted in the future or what effect such changes could have on our business, but such changes, to the extent they are brought into tax legislation, regulations, policies or practices in jurisdictions in which we operate, could increase the estimated tax liability that we have expensed to date and paid or accrued on our balance sheets, and otherwise affect our financial position, future results of operations, cash flows in a particular period and overall or effective tax rates in the future in countries where we have operations, reduce post-tax returns to our stockholders and increase the complexity, burden and cost of tax compliance, which may adversely affect our business and prospects.
Tax authorities may examine or audit our tax returns, disagree with our positions and conclusions regarding certain tax positions, or may apply existing rules in an unforeseen manner, resulting in unanticipated costs, taxes or non-realization of expected benefits.
We are subject to the continuous examination of our tax returns by the United States Internal Revenue Service and other tax authorities around the world. We regularly assess the likelihood of adverse outcomes resulting from these examinations to determine the adequacy of our provisions for taxes. There can be no assurance that the outcomes from these examinations will not have an adverse effect on our business, financial condition, results of operations and prospects. For example, as a result of examinations by applicable tax authorities, we may be subject to an indirect tax liability relating to our previous acquisition of 4th Source and may have a contingent sales tax obligation in Tennessee which in aggregate total approximately $70,000 and each of which, if applicable, we anticipate paying in Q2 2023.
In addition, U.S. state and local and foreign jurisdictions have differing rules and regulations governing sales, use, value added and other taxes, and these rules and regulations are subject to varying interpretations that may change over time. Further, these jurisdictions’ rules regarding tax nexus are complex and vary significantly. As a result, we could face the possibility of audits that could result in tax assessments, including associated interest and penalties. A successful assertion that we should be collecting additional sales, use, value added or other taxes in those jurisdictions where we have not historically done so could result in substantial tax liabilities and related penalties for past transactions, discourage customers from using our services or otherwise harm our business, financial condition, results of operations and prospects. For example, we are currently being audited by the Mexican tax authorities with possible tax assessments including income tax, value added taxes, penalties and interest ranging from $1.5 million to $3 million. With the assistance of outside tax advisors, we are currently addressing these audits and we will pursue all available administrative or legal remedies for a favorable resolution. We regularly assess our tax returns for possible additional tax liabilities.
A tax authority may also disagree with tax positions that we have taken, which could result in increased tax liabilities. For example, the U.S. Internal Revenue Service, the Mexican taxing authorities or another tax authority could challenge our allocation of income by tax jurisdiction and the amounts paid between our affiliated companies pursuant to our intercompany arrangements and transfer pricing policies, including methodologies for valuing developed technology and amounts paid with respect to our intellectual property development. Similarly, a tax authority could assert that we are
42
subject to tax in a jurisdiction where we believe we have not established a taxable connection, often referred to as a “permanent establishment” under international tax treaties, and such an assertion, if successful, could increase our expected tax liability in one or more jurisdictions. Due to uncertainty in the application and interpretation of applicable tax laws in various jurisdictions, we may be exposed to sales and use, value added or other transaction tax liability, including with respect to transactions of the businesses we have acquired.
Tax authorities may take the position that material income tax liabilities, interest and penalties are payable by us, where there has been a technical violation of contradictory laws and regulations that are relatively new and have not been subject to extensive review or interpretation, in which case we expect that we might contest such assessment. High-profile companies can be particularly vulnerable to aggressive application of unclear requirements. Many companies must negotiate their tax bills with tax inspectors who may demand higher taxes than applicable law appears to provide. Contesting such an assessment may be lengthy and costly and if we were unsuccessful in disputing the assessment, the implications could increase our anticipated effective tax rate, where applicable. These uncertainties with respect to the application of tax laws, as well as the outcomes of tax examinations and audits and related tax assessments and liabilities, could have a material adverse effect on our business, financial condition, results of operations and prospects.
Emerging markets are subject to greater risks than more developed markets, and financial turmoil in any emerging market could disrupt our business.
Latin American countries are generally considered to be emerging markets, which are subject to rapid change and greater legal, economic and political risks than more established markets. Financial problems or an increase in the perceived risks associated with investing in emerging economies could dampen foreign investment in Latin America and adversely affect the economy of the region. Political instability could result in a worsening overall economic situation, including capital flight and slowdown of investment and business activity. Current and future changes in governments of the countries in which we have or develop operations, as well as major policy shifts or lack of consensus between various branches of the government and powerful economic groups, could lead to political instability and disrupt or reverse political, economic and regulatory reforms, which could adversely affect our business and operations in those countries. In addition, political and economic relations between certain of the countries in which we operate are complex, and recent conflicts have arisen between certain of their governments. Political, ethnic, religious, historical and other differences have, on occasion, given rise to tensions and, in certain cases, military conflicts among Latin American countries which can halt normal economic activity and disrupt the economies of neighboring regions. The emergence of new or escalated tensions in Latin American countries could further exacerbate tensions between such countries and the United States and the European Union, which may have a negative effect on their economy, our ability to develop or maintain our operations in those countries and our ability to attract and retain employees, any of which could materially adversely affect our business, financial condition, results of operations and prospects.
In addition, banking and other financial systems in certain countries in which we have operations are less developed and regulated than in some more developed markets, and legislation relating to banks and bank accounts is subject to varying interpretations and inconsistent application. Banks in these regions often do not meet the banking standards of more developed markets, and the transparency of the banking sector lags behind international standards. Furthermore, in certain countries in which we operate, bank deposits made by corporate entities generally either are not insured or are insured only to specified limits. As a result, the banking sector remains subject to periodic instability. A banking crisis, or the bankruptcy or insolvency of banks through which we receive or with which we hold funds may result in the loss of our deposits or adversely affect our ability to complete banking transactions in certain countries in which we have operations, which could materially adversely affect our business, financial condition, results of operations and prospects.
Wage inflation and other compensation expense for our IT professionals could adversely affect our business, financial condition, results of operations and prospects.
Wage costs for IT professionals in Latin American countries are lower than comparable wage costs in more developed countries. However, wage costs in the IT services industry in these countries may increase at a faster rate than in the past and wage inflation for the IT industry may be higher than overall wage inflation within these countries. We may need to increase the levels of compensation for our personnel more rapidly than in the past to remain competitive, and we may not be able to pass on these increased costs to our clients. Unless we are able to continue to increase the efficiency and productivity of our personnel as well as the prices we can charge for our services, wage inflation may materially adversely affect our business, financial condition, results of operations and prospects.
43
We are subject to the U.S. Foreign Corrupt Practices Act and other anti-corruption laws in the jurisdictions in which we operate, as well as export control laws, import and customs laws, trade and economic sanctions laws and other laws governing our operations.
Our operations are subject to anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, or the FCPA, the U.S. domestic bribery statute contained in 18 U.S.C. §201, the U.S. Travel Act, the Ley General de Responsabilidades Administrativas in Mexico and other anti-corruption laws that apply in countries where we do business. The FCPA and these other laws generally prohibit us and our employees and intermediaries from authorizing, promising, offering, or providing, directly or indirectly, improper or prohibited payments, or anything else of value, to government officials or other persons to obtain or retain business or gain some other business advantage. We operate in a number of jurisdictions that pose a high risk of potential FCPA violations, such as Mexico and Brazil. In addition, we cannot predict the nature, scope or effect of future regulatory requirements to which our international operations might be subject or the manner in which existing laws might be administered or interpreted.
We are also subject to other laws and regulations governing our international operations, including regulations administered by the governments of the United States and Mexico, including applicable export control regulations, economic sanctions and embargoes on certain countries and persons, anti-money laundering laws, import and customs requirements and currency exchange regulations, collectively referred to as the Trade Control laws. We may not be completely effective in ensuring our compliance with all such applicable laws, which could result in our being subject to criminal and civil penalties, disgorgement and other sanctions and remedial measures, and legal expenses. Likewise, any investigation of any potential violations of such laws by the United States, Mexico, or other authorities could also have an adverse impact on our reputation, our business, financial condition, results of operations and prospects.
Because many of our agreements may be governed by laws of jurisdictions other than the United States, we may not be able to enforce our rights within such jurisdictions or elsewhere, which could result in a significant loss of business, business opportunities or capital.
Many of our agreements are governed by laws of jurisdictions other than the United States, such as agreements governed under Mexican law. The system of laws and the enforcement of existing laws and contracts in such jurisdictions may not be as certain in implementation and interpretation as in the United States. The judiciaries in Mexico, Brazil and other Latin American countries are relatively inexperienced in enforcing corporate and commercial law, leading to a higher than usual degree of uncertainty as to the outcome of any litigation. As a result, the inability to enforce or obtain a remedy under any of our current or future agreements could result in a significant loss of business and business opportunities and our business, financial condition, results of operations and prospects may be adversely affected.
Risks Related to Investing in Our Securities
The market price and trading volume of our common stock and warrants has been and will likely continue to be volatile and could decline significantly.
Our common stock and our warrants have from time to time experienced significant price and volume fluctuations. Even if an active, liquid and orderly trading market is sustained for our securities, the market price of our securities is likely to continue to be volatile and could decline significantly. In addition, the trading volume in our securities may fluctuate and cause significant price variations to occur. If the market price of our securities declines significantly, you may be unable to resell your shares at or above the market price of our securities at which your purchased our securities. We cannot assure you that the market price of our securities will not fluctuate widely or decline significantly in the future in response to a number of factors, including, among others, the following:
•the realization of any of the risk factors presented in this annual report on Form 10-K;
•actual or anticipated fluctuations in our quarterly financial results or the quarterly financial results of companies perceived to be similar to us;
•changes in the market’s expectations about our operating results;
•our operating results failing to meet the expectation of securities analysts of investors in a particular period;
•operating and share price performance of other companies that investors deem comparable to us;
•the volume of shares of common stock available for public sale;
•future issuances, sales, resales or repurchases or anticipated issuances, sales, resales or repurchases of our securities;
•our ability to effectively service any current and future outstanding debt obligations;
44
•the announcement of new services or enhancements by us or our competitors;
•developments concerning intellectual property rights;
•changes in legal, regulatory and enforcement frameworks impacting our business;
•changes in the prices of our services;
•announcements by us or our competitors of significant business developments, acquisitions or new offerings;
•our involvement in any litigation;
•changes in senior management or key personnel;
•changes in the anticipated future size and growth rate of our market;
•actual or perceived data security incidents or breaches;
•any delisting of our common stock or warrants from NASDAQ due to any failure to meet listing requirements;
•actual or anticipated variations in quarterly operating results;
•our failure to meet the estimates and projections of the investment community or that we may otherwise provide to the public;
•publication of research reports about us or our industry or positive or negative recommendations or withdrawal of research coverage by securities analysts;
•changes in the market valuations of similar companies;
•overall performance of the equity markets;
•speculation in the press or investment community;
•sales of common stock by us or our stockholders in the future;
•the effectiveness of our internal control over financial reporting;
•general political and economic conditions, including health pandemics, such as COVID-19; and
•other events or factors, many of which are beyond our control.
In the past, securities class-action litigation has often been instituted against companies following periods of volatility in the market price of their securities. This type of litigation could result in substantial costs and divert our management’s attention and resources, which could have a material adverse effect on us.
There can be no assurance that we will be able to comply with the continued listing standards of Nasdaq.
Our common stock and public warrants are currently listed on Nasdaq. However, we cannot assure you that our securities will continue to be listed on Nasdaq in the future. It is possible that our common stock and public warrants will cease to meet the Nasdaq listing requirements in the future.
If Nasdaq delists our securities from trading on its exchange and we are unable to list our securities on another national securities exchange, we expect that our securities could be quoted on an over-the-counter market. If this were to occur, we could face significant material adverse consequences, including:
•a limited availability of market quotations for its securities;
•reduced liquidity for its securities;
•a determination that our common Stock is a “penny stock” which will require brokers trading in the common stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our securities;
•a limited amount of news and analyst coverage; and
•a decreased ability to issue additional securities or obtain additional financing in the future.
The National Securities Markets Improvement Act of 1996, which is a federal statute, prevents or preempts the states from regulating the sale of certain securities, which are referred to as “covered securities.” Because the common stock and public warrants are listed on Nasdaq, they are covered securities. Although the states are preempted from regulating the sale of our securities, the federal statute does allow the states to investigate companies if there is a suspicion of fraud, and, if there is a finding of fraudulent activity, then the states can regulate or bar the sale of covered securities in a particular case. While we are not aware of a state, other than the State of Idaho, having used these powers to prohibit or restrict the sale of securities issued by blank check companies, certain state securities regulators view blank check companies unfavorably and might use these powers, or threaten to use these powers, to hinder the sale of securities of blank check companies in their states. Further, if we were no longer listed on Nasdaq, our securities would not be covered securities and we would be subject to regulation in each state in which we offer our securities.
Our failure to meet the continued listing requirements of Nasdaq could result in a delisting of our securities.
45
If we fail to satisfy the continued listing requirements of Nasdaq such as the corporate governance requirements or the minimum share price requirement, Nasdaq may take steps to delist our securities. Such a delisting would likely have a negative effect on the price of the securities and would impair your ability to sell or purchase the securities when you wish to do so. In the event of a delisting, we can provide no assurance that any action taken by us to restore compliance with listing requirements would allow our securities to become listed again, stabilize the market price or improve the liquidity of our securities, prevent our securities from dropping below the Nasdaq minimum share price requirement or prevent future non-compliance with Nasdaq’s listing requirements. Additionally, if our securities are not listed on, or become delisted from, Nasdaq for any reason, and are quoted on the OTC Bulletin Board, an inter-dealer automated quotation system for equity securities that is not a national securities exchange, the liquidity and price of our securities may be more limited than if we were quoted or listed on Nasdaq or another national securities exchange. You may be unable to sell your securities unless a market can be established or sustained.
We may be subject to securities litigation, which is expensive and could divert management attention.
The market price of our common stock has been volatile and may continue to be volatile in the future and, in the past, companies that have experienced volatility in the market price of their stock have been subject to securities class action litigation. We may be the target of this type of litigation in the future. Securities litigation against us could result in substantial costs and divert management’s attention from other business concerns, which could seriously harm our business.
The Legacy AT equity holders and the sponsor own a significant portion of our outstanding voting shares, and representatives of the sponsor and two of Legacy AT’s largest stockholders occupy a total of four of the eleven seats on our board of directors. Concentration of ownership among the Legacy AT equity investors and the sponsor may prevent new investors from influencing significant corporate decisions.
As of December 31, 2022, the Legacy AT equity holders, including LIV Fund IV with respect to its shares held as a Legacy AT equity holder, held approximately 55.5% of our common stock. Furthermore, the Legacy AT equity holders, which include the second lien lenders, could increase their ownership percentage to the extent that they choose to convert all or a portion of the Second Lien Facility into common stock.
In addition, our board of directors includes one representative from the sponsor, and two from each of the Nexxus Funds and CS Investors, each of which hold large amounts of common stock, for a total of four directors out of a total of 11 directors. Pursuant to the sponsor letter agreement, for so long as the sponsor and its affiliates and its and their respective permitted transferees continue to own, directly or indirectly, our securities representing more than 4% of the combined voting power of our then outstanding voting securities, the sponsor will be entitled to nominate one director designee to serve on our board of directors. As long as the Legacy AT equity holders (including the Nexxus Funds and CS Investors), LIV Fund IV and the sponsor own or control a significant percentage of outstanding voting power, they will have the ability to strongly influence all corporate actions requiring stockholder approval, including the election and removal of directors and the size of our board of directors, any amendment of our organizational documents, or the approval of any merger or other significant corporate transaction, including a sale of substantially all of our assets. In addition, as long as the sponsor, the Nexxus Funds and CS Investors retain five of the 11 seats on our board of directors, they will have the ability to strongly influence all corporate action requiring approval of our board of directors, including calling special meetings of stockholders, any amendment of our organizational documents, or the approval of any merger or other significant corporate transaction, including financing transactions and a sale of substantially all of our assets.
The interests of the Legacy AT equity holders, including the Nexxus Funds and CS Investors, LIV Fund IV and the sponsor and affiliates and their respective permitted transferees may not align with the interests of our other stockholders. Certain of the Legacy AT equity holders, including the Nexxus Funds and CS Investors, LIV Fund IV and the sponsor are in the business of making investments in companies and may acquire and hold interests in businesses that compete directly or indirectly with us. Certain of the Legacy AT equity holders, including the Nexxus Funds and CS Investors, LIV Fund IV and the sponsor may also pursue acquisition opportunities that may be complementary to our business, and, as a result, those acquisition opportunities may not be available to us.
Certain of our executive officers and directors have received waivers from our insider trading policy in order to pledge shares of our common stock as collateral for loans, which may cause their interests to conflict with the interests of our other stockholders and may adversely affect the trading price of our common stock.
46
Manuel Senderos, our Chief Executive Officer and Chairman of the Board of Directors, has pledged certain of his shares of our common stock to lenders to obtain a loan in the amounts of $4.5 million, used by him to provide the Company with his portion of the Second Lien Facility. In addition, Mauricio Garduño, our Vice President, Business Development and a Director, has pledged certain of his shares of our common stock to a lender as security for indebtedness.
We are not a party to these loans, which are full recourse against Messrs. Senderos and Garduño and are secured by pledges of a portion of our common stock currently beneficially owned by them. The terms of these loans were negotiated directly between Messrs. Senderos and Garduño and the lender. In order for Messrs. Senderos and Garduño to pledge their securities, our board of directors had to approve a waiver to our insider trading policy, which provides for a prohibition on pledging securities, restrictions on trading securities during blackout periods, and a requirement that all trades made by Messrs. Senderos and Garduño be pre-cleared in advance of trading.
Because of these pledges made by Messrs. Senderos and Garduño, their interests may not align with the interests of other stockholders, and they may act in a manner that advances their interests and not necessarily those of our other stockholders. The occurrence of certain events under these loan agreements could result in the future sales of such shares and significantly reduce Messrs. Senderos’s and Garduño’s ownership in us. Such sales could occur while Messrs. Senderos and Garduño are in possession of material non-public information without prior permission from the Company. Such sales could expose Messrs. Senderos and Garduño to an investigation or litigation for insider trading, which could, among other things, distract our management and employees from our business. Such sales could also adversely affect the market and trading price of our common stock. In addition, if the value of our common stock declines, the lender may require additional collateral for the loans, which could cause Messrs. Senderos and Garduño to pledge additional shares of our common stock. We can give no assurances that Messrs. Senderos and Garduño will not pledge additional shares of our common stock in the future, as a result of lender calls requiring additional collateral.
Future resales of common stock may cause the market price of our securities to drop significantly, even if our business is doing well.
Upon expiration of the lock-up extensions agreed to by the Nexxus Funds and CS Investors and certain of our management, they may sell their shares, in block trades or other large dispositions, the timing for which may be influenced for each of the Nexxus Funds and CS Investors by considerations particular to its specific fund, for example end of fund life considerations. Additionally, the subscription investors and LIV Fund IV with respect to its shares held as a pre-merger Legacy AT equity holder are not be restricted from selling any of their shares of our common stock, other than by applicable securities laws. As such, sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of our common stock.
As such, sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of our common stock.
As restrictions on resale end and registration statements are available for use, the sale or possibility of sale of these shares could have the effect of increasing the volatility in our share price or the market price of our common stock could decline if the holders of currently restricted shares sell them or are perceived by the market as intending to sell them.
Substantial future sales of shares of our common stock could cause the market price of our common stock to decline.
We expect that significant additional capital will be needed in the near future to continue our planned operations. Sales of a substantial number of shares of our common stock in the public market, or the perception that these sales might occur, could depress the market price of our common stock and could impair our ability to raise capital through the sale of additional equity securities. We are unable to predict the effect that such sales may have on the prevailing market price of our common stock.
As noted in the following risk factor, we have issued or will issue shares to certain of our lenders. Moreover, to the extent our warrants and the warrants to be issued to Monroe are exercised or the New Second Lien Lenders convert some or all of the Second Lien Facility into shares of common stock, additional shares of our common stock will be issued. The issuance of these shares will result in dilution to the holders of our common stock and increase the number of shares
47
eligible for resale in the public market. We have also registered or agreed to register such sales for resale by the holders thereof.
We have issued and will issue shares of common stock to certain of our lenders to secure some of our payment obligations to those lenders. Such issuances, and any future issuances will, dilute the interests of our shareholders.
We have issued approximately 3.6 million shares of common stock to Monroe, AGS Group, and Exitus Capital who, subject to certain regulatory restrictions, may sell the shares and apply the proceeds to the outstanding balance of the respective obligations we owe to them. In addition, we are obligated to issue additional shares to Exitus Capital if the value of the shares held by them is less than two times the outstanding principal amount of the loan. As of February 28, 2023, the outstanding principal amount owed to Exitus Capital was $1.6 million and the shares held by Exitus Capital had a value of approximately $5.2 million, based on a share price of $4.30, which was the closing price of our common stock on February 28, 2023.
In addition, we will issue warrants to Monroe to purchase $7.0 million worth of our common stock, which may be exercised for nominal consideration. The warrants will be issued on the earlier of full repayment of outstanding deferred fees and August 29, 2023 and will be exercisable immediately upon issuance. Furthermore, each Second Lien Lender under the Second Lien Facility (other than Nexxus Capital) has the right, but not the obligation, to convert all or any portion of its outstanding loans into our common stock. The loans, including interest and fees, held by Nexxus Capital will convert into our common stock on June 15, 2023.
To the extent we are not able to pay the AN Extend parties in cash under the AN Extend purchase price obligation note payable on or prior to November 15, 2023, the total amount of principal and the interest will be converted within the following 30 calendar days into shares of our common stock, based on the Volume Weighted Moving Average Price of our common stock on Nasdaq. This earnout obligation totaled $2.4 million as of December 31, 2022 and accrued interest at 11% per annum.
We have also entered into registration rights agreements with respect to the resale of all such shares, except with respect to shares issuable to the AN Extend parties. Such issuances have and will dilute the equity interests of our shareholders and may adversely affect prevailing market prices for our common stock and/or warrants.
We may issue additional shares of common stock, including under the 2021 Equity Incentive Plan and the 2021 Employee Stock Purchase Plan. Any such issuances would dilute the interest of our shareholders and likely present other risks.
We may issue a substantial number of shares of common stock, including under the 2021 Equity Incentive Plan and the 2021 Employee Stock Purchase Plan, or preferred stock. Any such issuances of additional shares of common stock or preferred stock:
•may significantly dilute the equity interests of our shareholders;
•may subordinate the rights of holders of common stock if preferred stock is issued with rights senior to those afforded our common stock;
•could cause a change in control if a substantial number of shares of our common stock are issued, which may affect, among other things, our ability to use our net operating loss carry forwards, if any, and could result in the resignation or removal of our present officers and directors; and
•may adversely affect prevailing market prices for our common stock and/or warrants.
We do not intend to pay cash dividends for the foreseeable future.
We currently intend to retain our future earnings, if any, to finance the further development and expansion of our business and do not intend to pay cash dividends in the foreseeable future. Any future determination to pay dividends will be at the discretion of our board of directors and will depend on our financial condition, results of operations, capital requirements, restrictions contained in future agreements and financing instruments, business prospects and such other factors as our board of directors deems relevant.
There is no guarantee that the warrants will be in the money prior to their expiration, and they may expire worthless.
48
The exercise price for our warrants is $11.50 per share of common stock. There is no guarantee that the warrants will be in the money prior to their expiration, and as such, the warrants may expire worthless.
We may amend the terms of the warrants in a manner that may be adverse to holders with the approval by the holders of at least a majority of then outstanding public warrants. As a result, the exercise price of your warrants could be increased, the exercise period could be shortened and the number of ordinary shares (or shares of common stock into which such shares will convert in connection with the domestication) purchasable upon exercise of a warrant could be decreased, all without your approval.
Our warrants were issued in registered form under the warrant agreement between Continental Stock Transfer & Trust Company, as warrant agent, and us. The warrant agreement provides that the terms of the warrants may be amended without the consent of any holder for the purpose of curing any ambiguity or curing, correcting or supplementing any defective provision or adding or changing any other provisions with respect to matters or questions arising under the warrant agreement, but requires the approval by the holders of at least a majority of then outstanding public warrants to make any change that adversely affects the interests of the registered holders. Accordingly, we may amend the terms of the public warrants in a manner adverse to a holder if holders of at least a majority of then outstanding public warrants approve of such amendment. Examples of such amendments could be amendments to, among other things, increase the exercise price of the warrants, shorten the exercise period or decrease the number of shares of common stock purchasable upon exercise of a warrant.
We may redeem unexpired warrants prior to their exercise at a time that is disadvantageous to warrant holders, thereby making their warrants worthless.
We have the ability to redeem outstanding warrants at any time after they become exercisable and prior to their expiration, at a price of $0.01 per warrant; provided that the last reported sales price of our shares of common stock equals or exceeds $18.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like) for any 20 trading days within a 30 trading-day period ending on the third trading day prior to the date we send the notice of redemption to the warrant holders. If and when the warrants become redeemable by us, we may exercise our redemption right even if we are unable to register or qualify the underlying securities for sale under all applicable state securities laws. Redemption of the outstanding warrants could force you to: (1) exercise your warrants and pay the exercise price therefor at a time when it may be disadvantageous for you to do so; (2) sell your warrants at then-current market price when you might otherwise wish to hold your warrants; or (3) accept the nominal redemption price which, at the time the outstanding warrants are called for redemption, is likely to be substantially less than the market value of your warrants. None of the private warrants will be redeemable by us so long as they are held by the sponsor and its affiliates and its and their respective permitted transferees.
Anti-takeover provisions contained in our charter and our bylaws, as well as provisions of Delaware law, could impair a takeover attempt.
Our charter and our bylaws contain provisions that could have the effect of delaying or preventing changes in control or changes in our management without the consent of our board of directors. These provisions include:
•no cumulative voting in the election of directors, which limits the ability of minority stockholders to elect director candidates;
•the exclusive right of the board of directors to elect a director to fill a vacancy created by the expansion of the board of directors or the resignation, death, or removal of a director by stockholders, which prevents stockholders from being able to fill vacancies on the board of directors;
•the ability of the board of directors to determine whether to issue shares of our preferred stock and to determine the price and other terms of those shares, including preferences and voting rights, without stockholder approval, which could be used to significantly dilute the ownership of a hostile acquirer;
•a prohibition on stockholder action by written consent, which forces stockholder action to be taken at an annual or special meeting of our stockholders;
•the requirement that a special meeting of stockholders may be called only by the chairperson of the Board, the chief executive officer or the board of directors, which may delay the ability of our stockholders to force consideration of a proposal or to take action, including the removal of directors;
•limiting the liability of, and providing indemnification to, our directors and officers;
•controlling the procedures for the conduct and scheduling of stockholder meetings;
49
•providing for a classified board, in which the members of the board of directors are divided into three classes to serve for a period of three years from the date of their respective appointment or election;
•granting the ability to remove directors with cause by the affirmative vote of 66 2⁄3% in voting power of the then outstanding shares of capital stock of the Company entitled to vote at an election of directors;
•requiring the affirmative vote of at least 66 2⁄3% of the voting power of the outstanding shares of our capital stock entitled to vote generally in the election of directors, voting together as a single class, to amend the bylaws or Articles V, VI, VII and VIII of the charter; and
•advance notice procedures that stockholders must comply with in order to nominate candidates to the board of directors or to propose matters to be acted upon at a stockholders’ meeting, which may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of us.
These provisions, alone or together, could delay hostile takeovers and changes in control of us or changes in our board of directors and our management.
As a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the DGCL, which prevents some stockholders holding more than 15% of our outstanding common stock from engaging in certain business combinations without approval of the holders of substantially all of the common stock. Any provision of the charter, bylaws or Delaware law that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of common stock and could also affect the price that some investors are willing to pay for common stock.
Our charter designates the Court of Chancery of the State of Delaware and the federal district courts of the United States as the exclusive forums for substantially all disputes between us and our stockholders, to the fullest extent permitted by law, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, stockholders, employees or agents.
Our charter provides that, to the fullest extent permitted by law, and subject to the court’s having personal jurisdiction over the indispensable parties named as defendants, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for:
•any derivative claim or cause of action brought on behalf of us;
•any claim or cause of action for breach of a fiduciary duty owed by any current or former director, officer or other employee of the Company to us or our stockholders;
•any claim or cause of action against us or any current or former director, officer or other employee of the Company arising out of or pursuant to any provision of the DGCL, our charter or our bylaws (as each may be amended from time to time);
•any claim or cause of action seeking to interpret, apply, enforce or determine the validity of our charter or our bylaws (including any right, obligation or remedy thereunder);
•any claim or cause of action as to which the DGCL confers jurisdiction to the Court of Chancery of the State of Delaware; or
•any claim or cause of action asserting a claim against us, or any director, officer or other employee of the Company governed by the internal affairs doctrine.
This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or any of our directors, officers, or other employees, which may discourage lawsuits with respect to such claims. However, stockholders will not be deemed to have waived our compliance with the federal securities laws and the rules and regulations thereunder and this provision would not apply to suits brought to enforce a duty or liability created by the Securities Act or the Exchange Act.
Our charter also provides that the federal district courts of the United States will be the exclusive forum for any complaint asserting a cause of action under the Securities Act. Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. Accordingly, there is uncertainty as to whether a court would enforce this forum provision providing for exclusive jurisdiction of federal district courts with respect to suits brought to enforce any duty or liability created by the Securities Act. If a court were to find the choice of forum provisions contained in our charter to be inapplicable or unenforceable in an action, We may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, results of operations and financial condition.
50
If securities or industry analysts do not publish or cease publishing research or reports about us, our business, or our market, or if they change their recommendations regarding our common stock adversely, the price and trading volume of our common stock could decline.
The trading market for our common stock will be influenced by the research and reports that industry or securities analysts may publish about us, our business, our market, or our competitors. If any of the analysts who may cover us change their recommendation regarding our stock adversely, or provide more favorable relative recommendations about our competitors, the price of our common stock would likely decline. If any analyst who may cover us were to cease their coverage or fail to regularly publish reports on us, we could lose visibility in the financial markets, which could cause our stock price or trading volume to decline.
We are an emerging growth company and the reduced disclosure requirements applicable to emerging growth companies may make our common stock less attractive to investors.
We are an emerging growth company, as defined in the JOBS Act, and we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies” including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced financial disclosure obligations, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and any golden parachute payments not previously approved. Pursuant to Section 107 of the JOBS Act, as an emerging growth company, we have elected to use the extended transition period for complying with new or revised accounting standards until those standards would otherwise apply to private companies. As a result, our consolidated financial statements may not be comparable to the financial statements of issuers who are required to comply with the effective dates for new or revised accounting standards that are applicable to public companies.
We are permitted to take advantage of these provisions until we are no longer an emerging growth company. We would cease to be an emerging growth company until the earliest of: (a) December 31, 2024, (b) the last date of our fiscal year in which we have a total annual gross revenue of at least $1.07 billion, (c) the date on which we are deemed to be a “large accelerated filer” under the rules of the SEC with at least $700.0 million of outstanding securities held by non-affiliates or (d) the date on which we have issued more than $1.0 billion in non-convertible debt securities during the previous three years.
We may choose to take advantage of some but not all of these reduced reporting requirements. If we take advantage of any of these reduced reporting requirements in future filings, the information that we provide our security holders may be different than the information you might get from other public companies in which you hold equity interests. We cannot predict if investors will find our common stock less attractive because we may rely on these exemptions.
Financial Industry Regulatory Authority, Inc. (“FINRA”) sales practice requirements may limit a stockholder’s ability to buy and sell our shares of common stock.
FINRA has adopted rules that require that in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative low-priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative low-priced securities will not be suitable for certain customers.
FINRA requirements will likely make it more difficult for broker-dealers to recommend that their customers buy our shares of common stock, which may have the effect of reducing the level of trading activity in our common stock. As a result, fewer broker-dealers may be willing to make a market in our common stock, reducing a stockholder’s ability to resell shares of our common stock.
51
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
We have offices in two U.S. cities, three cities in Mexico and three additional cities outside the United States and Mexico. Our headquarters are located in Irving, Texas. We believe that our current facilities are adequate to meet our ongoing needs, and that, if we require additional space, we will be able to obtain additional facilities on commercially reasonable terms.
Item 3. Legal Proceedings
On August 26, 2022, AnovoRx Holdings, Inc. (“Anovo”) filed a complaint against us in the United States District Court for the Western District of Tennessee, captioned AnovoRx Holdings, Inc. v. AgileThought, Inc. (Case No. 2:22-cv-02557), regarding a contract entered into in March 2019 for the Company to design and build a custom software solution for Anovo. The Company terminated the contract on April 29, 2022, for non-payment by Anovo of certain fees incurred and invoiced, and the complaint alleges that we breached the agreement and includes claims for breach of contract, anticipatory breach of contract, fraud in the inducement and conversion. The plaintiff seeks damages of $2.5 million, an award of unspecified appropriate damages, an award of interest and costs and expenses and other and further relief as the court may deem just and proper. On November 11, 2022, we filed a counterclaim against Anovo for Anovo’s failure to pay fees incurred and invoiced for services requested by Anovo during the period from March 2021 through April 2022. Our counterclaim seeks damages of up to $1.7 million and an award of interest and costs and expenses and other and further relief as the court may deem just and proper. We believe that the allegations in the complaint are without merit, and we intend to vigorously defend ourselves in this matter.
In addition to the foregoing, we are currently and have in the past been subject to legal proceedings and regulatory actions in the ordinary course of business. We do not anticipate that the ultimate liability, if any, arising out of such ordinary course matters will have a material effect on our financial condition, results of operations or cash flows. In the future, we may be subject to further legal proceedings and regulatory actions in the ordinary course of business and we cannot predict whether any such proceeding or matter will have a material effect on our financial condition, results of operations or cash flows. Regardless of the outcome, litigation can have an adverse impact on us because of defense and settlement costs, diversion of management time and resources and other factors. For additional information, refer to Note 19, Commitments and Contingencies, within the audited consolidated financial statements included in “Item 8―Financial Statements and Supplementary Data” in this Annual Report on Form 10-K.
Item 4. Mine Safety Disclosures
None.
52
PART II
Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information for Common Stock
Our common stock and our public warrants that are exercisable for our common stock are traded on the NASDAQ Capital Market under the symbols “AGIL” and “AGILW”, respectively.
Holders of Record
As of March 7, 2022, there were 294 holders of record of our common stock. Because many of the shares of our common stock are held by brokers and other institutions on behalf of stockholders, we believe that there are considerably more beneficial holders of our common stock than record holders.
Dividends
We did not pay any cash dividends on our common stock during the year ended December 31, 2022, nor do we have plans to pay cash dividends on our common stock in the foreseeable future.
Unregistered Sales of Equity Securities
On November 15, 2022, the Company entered into an amendment to change the terms of the AN Extend purchase price obligation note payable. The amendment converted the note from Mexican pesos to U.S. dollars with capitalized interest added, set the applicable interest to 11% annually, and set a maturity date of November 15, 2023. If the note is not paid in full by the maturity date, the total amount of principal and the interest will be converted within the following 30 calendar days into shares of our common stock, based on the Volume Weighted Moving Average Price of our common stock on Nasdaq.
In connection with the Exitus Capital Subordinated Debt, the Company issued 1,207,712 shares to Exitus Capital on February 10, 2023. The shares are intended to serve as collateral under the Exitus Capital Subordinated Debt. The Company is obligated to issue additional shares to Exitus Capital from time to time if the value of the shares held by them is less two times than the outstanding principal amount of the loan.
In connection with the AGS Subordinated Promissory Note, the Company issued 414,367 shares to AGS Group on February 10, 2023. The shares are intended to serve as collateral under the AGS Subordinated Promissory Note.
The shares listed above were, or will be, issued in a transaction exempt from registration pursuant to Section 4(a)(2) of the Securities Act.
Item 6. [Reserved]
53
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our audited consolidated financial statements and related notes included in Part II, Item 8 "Financial Statements and Supplementary Data" in this Annual Report on Form 10-K. This discussion contains forward-looking statements that involve risks and uncertainties about our business and operations. Our actual results and the timing of selected events may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those discussed below and elsewhere in this Annual Report on Form 10-K, particularly under the captions “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”
For purposes of this item only “AgileThought”, “the Company,” “we,” “us” or “our” refer to AgileThought, Inc. and its subsidiaries, unless the context otherwise requires.
Overview
We are a leading provider of agile-first, end-to-end digital transformation services in the North American market using onshore and nearshore delivery. We offer client-centric, onshore and nearshore agile-first digital transformation services that help our clients transform by building, improving and running new solutions at scale. Our services enable our clients to leverage technology more effectively to focus on better business outcomes. From consulting to application development and cloud services to data management and automation, we strive to create a transparent, collaborative, and responsive experience for our clients.
For the year ended December 31, 2022, we had 137 active clients, and for the year ended December 31, 2021, we had 191 active clients.
As of December 31, 2022, we had 5 delivery centers across the United States, Mexico, Brazil, Argentina and Costa Rica from which we deliver services to our clients. As of December 31, 2022, we had 2,144 billable employees providing services remotely, from our talent centers or directly at client locations in the United States and Latin America. The breakdown of our employees by geography is as follows for the dates presented:
| As of December 31, | ||||||||||||||
| Employees by Geography | 2022 | 2021 | ||||||||||||
| United States | 249 | 355 | ||||||||||||
| Latin America | 2,255 | 2,315 | ||||||||||||
| Total | 2,504 | 2,670 | ||||||||||||
Total headcount decrease by 166 people from December 31, 2021 to December 31, 2022. The decrease is related mainly to the Company´s strategy to exit non-core projects which entails the exit of employees whose skill-set was not matching the purely-digital engagements the Company is actively pursuing. Our Latin America based headcount decreased by 60 people from December 31, 2021 to December 31, 2022 whereas our United States based headcount decreased by 106 people from December 31, 2021 to December 31, 2022, mainly as a result of our strategy to focus on nearshore resources to staff new sold contracts during 2022.
The following table presents our revenue by geography for the periods presented:
| Year Ended December 31, | ||||||||||||||
| Revenue by Geography (in thousands) | 2022 | 2021 | ||||||||||||
| United States | $ | 112,223 | $ | 103,436 | ||||||||||
| Latin America | 64,623 | 55,232 | ||||||||||||
| Total | $ | 176,846 | $ | 158,668 | ||||||||||
For the year ended December 31, 2022, our revenue was $176.8 million, as compared to $158.7 million for the year ended December 31, 2021. We generated 63.5% and 65.2% of our revenue from clients located in the United States and 36.5% and 34.8% of our revenue from clients located in Latin America for the years ended December 31, 2022 and 2021, respectively.
54
The following table presents our loss before income taxes for the periods presented:
| Year Ended December 31, | ||||||||||||||
| 2022 | 2021 | |||||||||||||
| (in thousands) | ||||||||||||||
| Loss before income taxes | $ | (18,674) | $ | (19,588) | ||||||||||
Our loss before income taxes was $18.7 million and $19.6 million for the years ended December 31, 2022, and 2021, respectively, and, for the same periods, our loss as a percentage of revenue was 10.6% and 12.3%, respectively.
Factors Affecting Our Performance
We believe that the key factors affecting our performance and results of operations include our ability to:
Expand Our Client Footprint in the United States
We are focused on growing our client footprint in the United States and furthering the application of our proven business capabilities in the U.S. market. We are currently working towards gradually exiting non-core engagements to focus on a highly strategic client base, requiring purely next-gen digital services, which are more aligned with our ideal client profile which targets clients with an average annual revenue potential of +$10 million and consumes our highly specialized Guild delivery model. We acquired 4th Source in 2018 and AgileThought, LLC in 2019, both of which are U.S. headquartered and operated companies. For the years ended December 31, 2022 and 2021, we had 67 and 80 active clients in the United States, respectively. We define an active client at a specific date as a client with whom we have recognized revenue for our services during the preceding 12-month period. As of December 31, 2022, we had 249 employees located in the United States. We believe we have a significant opportunity to penetrate the U.S. market further and expand our U.S. client base. Our ability to expand our footprint in the United States will depend on several factors, including the U.S. market perception of our services, our ability to increase nearshore delivery successfully, our ability to successfully integrate acquisitions, as well as pricing, competition and overall economic conditions, and to a lesser extent our ability to complete future complementary acquisitions.
Expand Our Client Footprint in the Latin America
We are also focused on growing our client footprint in Latin America and leveraging our local experience and network to capitalize on the region’s growth potential. The Latin America region is expected to experience the second strongest growth in digital transformation from 2022 to 2026 with a five year projected compounded annual growth rate of approximately 20%. Our business started in Mexico and we have established experience in the Latin America market since then, and we believe our experience allows us to tailor our offerings and naturally assertively approach our clients in that market. Our 2022 and 2021 revenues from Latin America clients were 36.5% and 34.8% of our total revenue, respectively.
Penetrate Existing Clients via Cross-Selling
We seek to strengthen our relationships with existing clients by cross-selling additional services. We have a proven track record of expanding our relationship with clients by offering a wide range of complementary services. Our ten largest active clients based on revenue accounted for $108.6 million, or 61.4%, and $103.3 million, or 65.1%, of our total revenue during the years ended December 31, 2022 and 2021, respectively. The following table shows the active clients concentration from the top client to the top twenty clients, for the periods presented:
| Percent of Revenue for the Year Ended December 31, | ||||||||||||||
| Client Concentration | 2022 | 2021 | ||||||||||||
| Top client | 14.9 | % | 13.0 | % | ||||||||||
| Top five clients | 42.9 | % | 43.7 | % | ||||||||||
55
| Top ten clients | 61.4 | % | 65.1 | % | ||||||||||
| Top twenty clients | 78.1 | % | 78.9 | % | ||||||||||
The following table shows the number of our active clients by revenue for the periods presented:
| For the Year Ended December 31, | ||||||||||||||
| Active Clients by Revenue | 2022 | 2021 | ||||||||||||
| Over $5 Million | 10 | 9 | ||||||||||||
| $2 – $5 Million | 12 | 7 | ||||||||||||
| $1 – $2 Million | 11 | 13 | ||||||||||||
| Less than $1 Million | 104 | 162 | ||||||||||||
| Total | 137 | 191 | ||||||||||||
The decrease in the total number of active clients from December 31, 2021 to December 31, 2022 is mainly related to the completion of smaller customer projects and maintenance engagements in 2021 that were not subsequently renewed as a result of COVID-19 pandemic combined with our gradual efforts, starting during the third quarter of 2022, to de-emphasize non-core projects and to focus on strategic digital projects.
We believe we have the opportunity to further cross-sell our clients with additional services that we have enhanced through recent acquisitions. However, our ability to increase sales to existing clients will depend on several factors, including the level of client satisfaction with our services, changes in clients’ strategic priorities and changes in key client personnel or strategic transactions involving clients, as well as pricing, competition and overall economic conditions.
Attract, Train, Retain and Utilize Highly Skilled Employees
We believe that attracting, training, retaining and utilizing highly skilled employees with capabilities in next-generation technologies will be key to our success. As of December 31, 2022, we had 2,504 employees. We continuously invest in training our employees and offer regular technical and language training, as well as other professional advancement programs. These programs not only help ensure our employees are well trained and knowledgeable, but also help enhance employee retention.
Strengthen Onshore and Nearshore Delivery with Diversification in Regions
In order to drive digital transformation initiatives for our clients, we believe that we need to be near the regions in which our clients are located and in similar time zones. We have established a strong base for our onshore and nearshore delivery model across Mexico. We also have offices in Argentina, Brazil, Costa Rica and the United States to source diverse talent and be responsive to clients in our core markets. Since January 1, 2018, we have added 4 new offices, including one in the United States (Tampa, Florida) and three in Mexico (one in Mexico City and the other two in Merida and Colima as a result of the acquisitions). From December 31, 2021 to December 31, 2022, our delivery headcount decreased by 114 employees, or 5.0%, mainly driven by the voluntary and involuntary attrition observed during the first half of 2022. As we continue to grow our relationships, we will expand our delivery centers in other cities in Mexico and other countries in similar time zones, such as Argentina and Costa Rica. While we believe that we currently have sufficient delivery center capacity to address our near-term needs and opportunities, as the recovery from the COVID-19 pandemic continues, and with our goal to expand our relationships with existing clients, attract new clients and expand our footprint in the United States, we will need to expand our teams through remote work opportunities and at existing and new delivery centers in nearshore locations with an abundance of technical talent. As we do so, we compete for talented individuals with other companies in our industry and companies in other industries.
56
Key Business Metrics
We regularly monitor several financial and operating metrics to evaluate our business, measure our performance, identify trends affecting our business, formulate financial projections and make strategic decisions. Our key non-GAAP and business metrics may be calculated in a different manner than similarly titled metrics used by other companies. See “ Non-GAAP Measures” for additional information on non-GAAP financial measures and a reconciliation to the most comparable GAAP measures.
| Year Ended December 31, | |||||||||||
| 2022 | 2021 | ||||||||||
| Gross Margin | 32.6 | % | 29.2 | % | |||||||
Loss from Operations (in thousands) | $ | (12,927) | $ | (2,047) | |||||||
Adjusted Operating Income (in thousands) | $ | 11,400 | $ | 3,584 | |||||||
Net Loss (in thousands) | $ | (20,128) | $ | (20,048) | |||||||
Adjusted Net Income (Loss) (in thousands) | $ | 2,723 | $ | (6,415) | |||||||
| Adjusted Diluted EPS | $ | 0.06 | $ | (0.17) | |||||||
| Number of large active clients (at or above $1.0 million of revenue in prior 12-month period) as of end of period | 33 | 29 | |||||||||
| Revenue concentration with top 10 clients | 61.4 | % | 65.1 | % | |||||||
Gross Margin
We monitor gross margin to understand the profitability of the services we provide to our clients. Gross margin is calculated as net revenues for the period minus cost of revenue for the period, divided by net revenues.
Adjusted Operating Income
We define and calculate Adjusted Operating Income as Loss from operations adjusted to exclude the change in fair value of embedded derivative liability, plus the change in fair value of purchase price obligation, plus the change in fair value of warrant liability, plus equity-based compensation expense, plus impairment charges, plus restructuring expenses, plus (gain) loss on business dispositions, plus (gain) loss on debt extinguishment, plus intangible assets amortization, plus certain transaction costs and other certain operating expense, net.
Adjusted Net Income (Loss)
We define and calculate Adjusted Net Income (Loss) as Net loss adjusted to exclude the change in fair value of embedded derivative liability, plus the change in fair value of purchase price obligation, plus the change in fair value of warrant liability, plus equity-based compensation expense, plus restructuring expenses, plus (gain) loss on business dispositions, plus foreign exchange (gain) loss, plus loss (gain) on debt extinguishment and debt forgiveness, plus intangible assets amortization, plus certain transaction costs, plus paid in kind interest expenses and amortization of debt issuance cost, premiums, and discounts and certain other expense, net.
Adjusted Diluted EPS
We define and calculate Adjusted EPS as Adjusted Net Income, divided by the diluted weighted-average number of common shares outstanding for the period.
See “Non-GAAP Measures” for additional information and a reconciliation of Loss from operations to Adjusted Operating Income and from Net loss to Adjusted Net Income (Loss) and Adjusted Diluted EPS.
Number of Large Active Clients
We monitor our number of large active clients to better understand our progress in winning large contracts on a period-over-period basis. We define the number of large active clients as the number of active clients from whom we generated more than $1.0 million of revenue in the prior 12-month period. For comparability purposes, we include the clients of the acquired businesses that meet these criteria to properly evaluate total client spending evolution.
57
Revenue Concentration with Top 10 clients
We monitor our revenue concentration with top 10 clients to understand our dependence on large clients on a period-over-period basis and to monitor our success in diversifying our revenue base. We define revenue concentration as the percent of our total revenue derived from our ten largest active clients.
Components of Results of Operations
Our business is organized into a single reportable segment. The Company's chief operating decision maker is the CEO, who reviews financial information presented on a consolidated basis for purposes of making operating decisions, assessing financial performance and allocating resources.
Net Revenues
Revenue is derived from the several types of integrated solutions we provide to our clients. Revenue is organized by contract type and geographic location. The type of revenue we generate from customers is classified based on: (i) time and materials, and (ii) fixed price contracts. Time and materials are transaction-based, or volume-based contracts based on input method such as labor hours incurred. Fixed price contracts are contracts where price is contractually predetermined. Revenue by geographic location is derived from revenue generated in the United States and Latin America, which includes Mexico, Argentina, Brazil, and Costa Rica.
Cost of Revenue
Cost of revenue consists primarily of employee-related costs associated with our personnel and fees from third-party vendors engaged in the delivery of our services, including: salaries, bonuses, benefits, project related travel costs, software licenses and any other costs that relate directly to the delivery of our services.
Gross Profit
Gross profit represents net revenues less cost of revenue.
Selling, General and Administrative Expenses
Selling, general and administrative expenses consists primarily of employee-related costs associated with our sales, marketing, legal, accounting and administrative personnel. Selling, general and administrative expenses also includes legal costs, external professional fees, brand marketing, provision for doubtful accounts, as well as expenses associated with our back-office facilities and office infrastructure, information technology, and other administrative expenses.
Depreciation and Amortization
Depreciation and amortization consist of depreciation and amortization expenses related to customer relationships, computer equipment, leasehold improvements, furniture and equipment, and other assets.
Change in Fair Value of Purchase Price Obligation
Changes in fair value of purchase price obligation consists of changes in estimated fair value of earnout arrangements entered into as part of our business acquisition process.
Change in Fair Value of Embedded Derivative Liabilities
Changes in fair value of embedded derivative liabilities consists of changes in the fair value of redemption and conversion features embedded within our preferred stock or debt instruments.
Change in Fair Value of Warrant Liability
Changes in fair value of warrant liability consist of changes to the outstanding private placement warrants assumed upon the consummation of the Business Combination.
Loss on Debt Extinguishment
Loss on debt extinguishment represents the difference between the net carrying value of the old debt instrument and the fair value of the new debt instrument.
58
Equity-based Compensation Expense
Equity-based compensation expense consists of compensation expenses recognized in connection with equity incentive awards granted to our employees and board members.
Restructuring Expenses
Restructuring expenses consists of costs associated with business realignment efforts and strategic transformation costs resulting from value creation initiatives following business acquisitions, which primarily relate to severance costs from back-office headcount reductions.
Other Operating Expenses, Net
Other operating expenses, net consists primarily of acquisition related costs and transaction costs related, including legal, accounting, valuation and investor relations advisors, and compensation consultant fees, as well as other operating expenses.
Interest Expense
Interest expense consists of interest incurred in connection with our long-term debt obligations, and amortization of debt issuance costs and/or debt premium/discounts.
Other Income (Expense), net
Other income (expense), net consists of interest income on invested funds, impacts from foreign exchange transactions, gain on disposition of business, gain on loan forgiveness and other expenses.
Income Tax Expense
Income tax expense represents expenses associated with our operations based on the tax laws of the jurisdictions in which we operate. Our calculation of income tax expense is based on tax rates and tax laws at the end of each applicable reporting period.
59
Results of Operations
The following table sets forth our consolidated statements of operations for the presented periods:
Year Ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Net revenues | $ | 176,846 | $ | 158,668 | |||||||
| Cost of revenue | 119,159 | 112,303 | |||||||||
| Gross profit | 57,687 | 46,365 | |||||||||
| Operating expenses: | |||||||||||
| Selling, general and administrative expenses | 45,786 | 43,551 | |||||||||
| Depreciation and amortization | 7,025 | 6,984 | |||||||||
| Change in fair value of purchase price obligation | — | (2,200) | |||||||||
| Change in fair value of embedded derivative liabilities | (3,337) | (4,406) | |||||||||
| Change in fair value of warrant liability | 169 | (4,694) | |||||||||
| Loss on debt extinguishment | 9,734 | — | |||||||||
| Equity-based compensation expense | 5,771 | 6,481 | |||||||||
| Restructuring expenses | 1,804 | 911 | |||||||||
| Other operating expenses, net | 3,662 | 1,785 | |||||||||
| Total operating expense | 70,614 | 48,412 | |||||||||
| Loss from operations | (12,927) | (2,047) | |||||||||
| Interest expense | (12,890) | (16,457) | |||||||||
| Other income (expense), net | 7,143 | (1,084) | |||||||||
| Loss before income tax | (18,674) | (19,588) | |||||||||
| Income tax expense | 1,454 | 460 | |||||||||
| Net loss | (20,128) | (20,048) | |||||||||
| Net income attributable to noncontrolling interests | 52 | 22 | |||||||||
| Net loss attributable to the Company | $ | (20,180) | $ | (20,070) | |||||||
60
The following table sets forth our consolidated statements of operations information expressed as a percentage of net revenues for each respective year presented:
Year Ended December 31, | |||||||||||
| 2022 | 2021 | ||||||||||
| Net revenues | 100.0 | % | 100.0 | % | |||||||
| Cost of revenue | 67.4 | % | 70.8 | % | |||||||
| Gross profit | 32.6 | % | 29.2 | % | |||||||
| Operating expenses: | |||||||||||
| Selling, general and administrative expenses | 25.9 | % | 27.4 | % | |||||||
| Depreciation and amortization | 4.0 | % | 4.4 | % | |||||||
| Change in fair value of purchase price obligation | — | % | (1.4) | % | |||||||
| Change in fair value of embedded derivative liabilities | (1.9) | % | (2.8) | % | |||||||
| Change in fair value of warrant liability | 0.1 | % | (3.0) | % | |||||||
| Loss on debt extinguishment | 5.5 | % | — | % | |||||||
| Equity-based compensation expense | 3.3 | % | 4.1 | % | |||||||
| Restructuring expenses | 1.0 | % | 0.6 | % | |||||||
| Other operating expenses, net | 2.1 | % | 1.1 | % | |||||||
| Total operating expense | 40.0 | % | 30.4 | % | |||||||
| Loss from operations | (7.4) | % | (1.2) | % | |||||||
| Interest expense | (7.3) | % | (10.4) | % | |||||||
| Other income (expense), net | 4.0 | % | (0.7) | % | |||||||
| Loss before income tax | (10.7) | % | (12.3) | % | |||||||
| Income tax expense | 0.8 | % | 0.3 | % | |||||||
| Net loss | (11.5) | % | (12.6) | % | |||||||
| Net income attributable to noncontrolling interests | — | % | — | % | |||||||
| Net loss attributable to the Company | (11.5) | % | (12.6) | % | |||||||
Comparison of Years Ended December 31, 2022 and 2021
Net revenues
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Net Revenues | $ | 176,846 | $ | 158,668 | 11.5 | % | |||||||||||
Net revenues for the year ended December 31, 2022 increased $18.2 million, or 11.5%, to $176.8 million from $158.7 million for the year ended December 31, 2021. The increase was primarily due to increased services, expanded scope in projects with existing clients, and the commencement of new projects with new clients.
Net Revenues by Geographic Location
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| United States | $ | 112,223 | $ | 103,436 | 8.5 | % | |||||||||||
| Latin America | 64,623 | 55,232 | 17.0 | % | |||||||||||||
| Total | $ | 176,846 | $ | 158,668 | 11.5 | % | |||||||||||
Net revenues from our United States operations for the year ended December 31, 2022 increased $8.8 million, or 8.5%, to $112.2 million from $103.4 million for the year ended December 31, 2021. The change was mainly driven by an
61
increase $16.2 million revenue generated with existing clients and new projects, offset by a reduction of $7.4 million due to a reduction of scope with legacy projects.
Net revenues from our Latin America operations for the year ended December 31, 2022 increased $9.4 million, or 17.0%, to $64.6 million from $55.2 million for the year ended December 31, 2021. The change was driven by an increase of $11.0 million related to increased scope of work with existing clients, offset by a $1.6 million decrease in revenues from other customers as a result of project scope reductions.
Revenues by Contract Type
The following table sets forth net revenues by contract type and as a percentage of our revenues for the periods indicated:
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Time and materials | $ | 125,231 | $ | 130,603 | (4.1) | % | |||||||||||
| Fixed price | 51,615 | 28,065 | 83.9 | % | |||||||||||||
| Total | $ | 176,846 | $ | 158,668 | 11.5 | % | |||||||||||
Net revenues from our time and materials contracts for the year ended December 31, 2022 decreased approximately $5.4 million, or 4.1%, to $125.2 million from $130.6 million for the year ended December 31, 2021. The main driver of the net variation is related to the decrease in service volume with existing and new customers under the time and materials revenue model towards fixed-price engagements. Net revenues from our fixed price contracts for the year ended December 31, 2022 increased $23.5 million, or 83.9%, to $51.6 million from $28.1 million for the year ended December 31, 2021. The main driver of the net increase is related to the shift to fixed price core delivery teams with two major clients from the financial services industry in Latin America, combined with additional revenues coming from fixed price engagements with other major existing customers.
Cost of revenue
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Cost of revenue | $ | 119,159 | $ | 112,303 | 6.1 | % | |||||||||||
| % of net revenues | 67.4 | % | 70.8 | % | |||||||||||||
Cost of revenue for the year ended December 31, 2022 increased $6.9 million, or 6.1%, to $119.2 million from $112.3 million for the year ended December 31, 2021. The increase was primarily driven by the increase in the scope of work from an existing client and the new scope of work from new clients consistent with our revenue growth from the year ended December 31, 2021 to December 31, 2022.
Selling, general and administrative expenses
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Selling, general and administrative expenses | $ | 45,786 | $ | 43,551 | 5.1 | % | |||||||||||
| % of net revenues | 25.9 | % | 27.4 | % | |||||||||||||
Selling, general and administrative expenses for the year ended December 31, 2022 increased $2.2 million, or 5.1%, to $45.8 million from $43.6 million for the year ended December 31, 2021. The increase was primarily due to a $2.8 million increase in employee costs mostly driven by new hires, the adoption of the guild delivery model, and a change in Mexican labor laws and an increase of $0.8 million of software and rent. This was offset by a reduction of $0.9 million in professional fees and a $0.5 million reduction insurance expense.
62
Depreciation and amortization
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Depreciation and amortization | $ | 7,025 | $ | 6,984 | 0.6 | % | |||||||||||
| % of net revenues | 4.0 | % | 4.4 | % | |||||||||||||
Depreciation and amortization for year ended December 31, 2022 and 2021, was $7.0 million, respectively.
Change in fair value of purchase price obligation
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Change in fair value of purchase price obligation | $ | — | $ | (2,200) | (100.0) | % | |||||||||||
| % of net revenues | — | % | (1.4) | % | |||||||||||||
Change in fair value of purchase price obligation for the year ended December 31, 2022 resulted in a gain of $2.2 million. As of December 31, 2021, the obligation now relates to a known and fixed amount due and is no longer a contingent obligation recorded at fair value. There was no change in fair value of purchase price obligation for the year ended December 31, 2022.
Change in fair value of embedded derivative liability
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Change in fair value of embedded derivative liabilities | $ | (3,337) | $ | (4,406) | (24.3) | % | |||||||||||
| % of net revenues | (1.9) | % | (2.8) | % | |||||||||||||
Change in fair value of embedded derivative liabilities for the year ended December 31, 2021 resulted in a gain of $4.4 million. The gain was primarily driven by the change in the discount rate used to estimate the fair value of embedded derivative liabilities from February 2, 2021 (inception date) to August 23, 2021. The change in fair value of embedded derivative liabilities for the year ended December 31, 2022 was primarily driven by a decline in the Company's stock price during from August 10, 2022 (inception date) to December 31, 2022.
Change in fair value of warrant liability
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Change in fair value of warrant liability | $ | 169 | $ | (4,694) | (103.6) | % | |||||||||||
| % of net revenues | 0.1 | % | (3.0) | % | |||||||||||||
Change in fair value of warrant liability for the year ended December 31, 2022 increased $4.9 million or 103.6% to $0.2 million from $(4.7) million for the year ended December 31, 2021. The loss was primarily driven by an increase in the
63
market price of our public warrants, changes in the risk-free rate of return and volatility used to estimate the fair value of our warrant liability from December 31, 2021 to December 31, 2022.
Loss on debt extinguishment
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Loss on debt extinguishment | $ | 9,734 | $ | — | 100.0 | % | |||||||||||
| % of net revenues | 5.5 | % | — | % | |||||||||||||
Loss on debt extinguishment for the year ended December 31, 2022 of $9.7 million was due to an amendment signed on March 30, 2022 for the First Lien Facility resulting in a $7.1 million loss offset by the $0.9 million gain on debt extinguishment recognized on May 27, 2022 when the Company extinguished the First Lien Facility. In addition, the loss on debt extinguishment increased due to the amendment signed on August 10, 2022 for the Second Lien Facility resulting in an $11.7 million loss. The Company entered into an amendment for the purchase price obligation on November 15, 2022 resulting in a $0.6 million loss on debt extinguishment. This was offset by a $8.8 million gain on debt extinguishment from the amendment signed on November 18, 2022 for the Second Lien Facility. Refer to Note 9, Long-Term Debt, for further information.
Equity-based compensation expense
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Equity-based compensation expense | $ | 5,771 | $ | 6,481 | (11.0) | % | |||||||||||
| % of net revenues | 3.3 | % | 4.1 | % | |||||||||||||
Equity-based compensation expense for the year ended December 31, 2022 decreased $0.7 million, or 11.0%, to $5.8 million from $6.5 million for the year ended December 31, 2021. The Company issued 4,673,681 RSUs during the year ended December 31, 2022 under the 2021 Equity Incentive Plan. In total, the awards under the 2021 Equity Incentive Plan resulted in $5.8 million equity-based compensation expense that was recognized during the year ended December 31, 2022. In connection with the Business Combination, the Company granted stock awards covering shares of common stock and accelerated previously granted restricted stock units, which resulted in $6.5 million equity-based compensation expense that was recognized during the year ended December 31, 2021. Refer to Note 18, Equity-based Arrangements, for further information.
Restructuring expenses
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Restructuring expenses | $ | 1,804 | $ | 911 | 98.0 | % | |||||||||||
| % of net revenues | 1.0 | % | 0.6 | % | |||||||||||||
Restructuring expenses for the year ended December 31, 2022 increased $0.9 million, or 98.0%, to $1.8 million from $0.9 million for the year ended December 31, 2021. The increase was primarily due to additional organization restructuring activities continued during 2022. Refer to Note 14, Restructuring, for further information.
64
Other operating expenses, net
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Other operating expense, net | $ | 3,662 | $ | 1,785 | 105.2 | % | |||||||||||
| % of net revenues | 2.1 | % | 1.1 | % | |||||||||||||
Other operating expenses, net for the year ended December 31, 2022 increased $1.9 million, or 105.2%, to $3.7 million from $1.8 million for the year ended December 31, 2021. This was mainly driven by increased fees for tax audit consultants, legal fees, and executive recruitment costs.
Interest expense
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Interest expense | $ | (12,890) | $ | (16,457) | (21.7) | % | |||||||||||
| % of net revenues | (7.3) | % | (10.4) | % | |||||||||||||
Interest expense for the year ended December 31, 2022 decreased $3.6 million, or 21.7%, to $12.9 million from $16.5 million for the year ended December 31, 2021. The decrease was primarily due to the reduction in principal debt obligations occurring from September 2021 to December 2022. During the first half of 2021 our outstanding principal debt was larger than the majority of 2022.
Other income (expense), net
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Other income (expense), net | $ | 7,143 | $ | (1,084) | (758.9) | % | |||||||||||
| % of net revenues | 4.0 | % | (0.7) | % | |||||||||||||
Other income (expense), net for the year ended December 31, 2022 increased $8.2 million, or 758.9%, to $7.1 million from $(1.1) million for the year ended December 31, 2021. The change was driven by a $2.5 million increase in net foreign currency exchange gains, an increase of the $6.0 million gain related to the PPP loan forgiveness, and offset by an increase of $0.3 million of other (expense).
Income tax expense
| Year Ended December 31, | % Change | ||||||||||||||||
| 2022 | 2021 | 2022 vs. 2021 | |||||||||||||||
| (in thousands, except percentages) | |||||||||||||||||
| Income tax expense | $ | 1,454 | $ | 460 | 216.1 | % | |||||||||||
| Effective income tax rate | 0.8 | % | 0.3 | % | |||||||||||||
Income tax expense for the year ended December 31, 2022 increased $1.0 million, or 216.1%, to $1.5 million from $0.5 million for the year ended December 31, 2021 due to an increase of deferred tax expense as a result of book to tax timing differences.
65
Non-GAAP Measures
To supplement our consolidated financial data presented on a basis consistent with U.S. GAAP, we present certain non-GAAP financial measures, including Adjusted Operating Income, Adjusted Net Income (Loss) and Adjusted Diluted EPS. We have included the non-GAAP financial measures because they are financial measures used by our management to evaluate our core operating performance and trends, to make strategic decisions regarding the allocation of capital and new investments and are among the factors analyzed in making performance-based compensation decisions for key personnel. The measures exclude certain expenses that are required under U.S. GAAP. We exclude certain non-cash expenses and certain items that are not part of our core operations.
We believe this supplemental performance measurement are useful in evaluating operating performance, as they are similar to measures reported by our public industry peers and those regularly used by security analysts, investors and other interested parties in analyzing operating performance and prospects. The non-GAAP financial measures are not intended to be a substitute for any GAAP financial measures and, as calculated, may not be comparable to other similarly titled measures of performance of other companies in other industries or within the same industry.
There are significant limitations associated with the use of non-GAAP financial measures. Further, these measures may differ from the non-GAAP information, even where similarly titled, used by other companies and therefore should not be used to compare our performance to that of other companies. We compensate for these limitations by providing investors and other users of our financial information a reconciliation of our non-GAAP measures to the related GAAP financial measure. We encourage investors and others to review our financial information in its entirety, not to rely on any single financial measure and to view our non-GAAP measures in conjunction with GAAP financial measures.
We define and calculate our non-GAAP financial measures as follows:
•Adjusted Operating Income: Loss from operations adjusted to exclude the change in fair value of embedded derivative liability, plus the change in fair value of purchase price obligation, plus the change in fair value of warrant liability, plus equity-based compensation expense, plus impairment charges, plus restructuring expense, plus gain (loss) on business depositions, plus loss (gain) on debt extinguishment, plus intangible assets amortization, plus certain transaction costs and certain other operating expense, net.
The following table presents the reconciliation of our Adjusted Operating Income to our Loss from operations, the most directly comparable GAAP measure, for the annual periods indicated:
| Year Ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Loss from operations | $ | (12,927) | $ | (2,047) | |||||||
| Change in fair value of embedded derivative liability | (3,337) | (4,406) | |||||||||
| Change in fair value of purchase price obligation | — | (2,200) | |||||||||
| Change in fair value of warrant liability | 169 | (4,694) | |||||||||
| Equity-based compensation expense | 5,771 | 6,481 | |||||||||
Restructuring expenses1 | 1,804 | 911 | |||||||||
| Loss on debt extinguishment | 9,734 | — | |||||||||
| Intangible assets amortization | 6,614 | 6,261 | |||||||||
| Transaction costs | 10 | 1,334 | |||||||||
Other operating expense, net2 | 3,562 | 1,944 | |||||||||
| Adjusted Operating Income | $ | 11,400 | $ | 3,584 | |||||||
1 - Represents restructuring expenses associated with the ongoing reorganization of our business operations and realignment efforts. Refer to Note 14, Restructuring, within our consolidated financial statements in this Annual Report on Form 10-K.
2 - Represents professional service fee primarily comprised of legal fees in connection with tax consulting fees in connection with review advisory and corporate consolidation project assessments, as well as non-recurring recruiting fee.
•Adjusted Net Income (Loss) : Net loss adjusted to exclude the change in fair value of embedded derivative liability, plus the change in fair value of purchase price obligation, plus the change in fair value of warrant liability, plus equity-based compensation expense, plus impairment charges, plus restructuring expenses, plus (gain) loss on business dispositions, plus foreign exchange (gain) loss, plus loss (gain) on debt extinguishment and debt forgiveness, plus
66
intangible assets amortization, plus certain transaction costs, plus paid in kind interest and amortization of debt issuance cost, premiums, and discounts and certain other expense, net.
•Adjusted Diluted EPS: Adjusted Net Income (Loss) divided by the diluted weighted-average number of common shares outstanding for the period.
The following table presents the reconciliation of our Adjusted Net Income (Loss) and Adjusted Diluted EPS to our Net loss, the most directly comparable GAAP measure, for the annual periods indicated:
| Year Ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Net loss | $ | (20,128) | $ | (20,048) | |||||||
| Change in fair value of embedded derivative liability | (3,337) | (4,406) | |||||||||
| Change in fair value of purchase price obligation | — | (2,200) | |||||||||
| Change in fair value of warrant liability | 169 | (4,694) | |||||||||
| Equity-based compensation expense | 5,771 | 6,481 | |||||||||
| Restructuring expenses | 1,804 | 911 | |||||||||
Foreign exchange (gain) loss1 | (593) | 1,936 | |||||||||
| Loss (Gain) on debt extinguishment and debt forgiveness | 2,454 | (1,306) | |||||||||
| Intangible assets amortization | 6,614 | 6,261 | |||||||||
| Transaction costs | 10 | 1,334 | |||||||||
| Paid in kind interests and amortization of debt issuance cost, premiums, and discounts | 5,667 | 6,847 | |||||||||
Other expense, net2 | 4,292 | 2,469 | |||||||||
| Adjusted Net Income (Loss) | 2,723 | (6,415) | |||||||||
| Number of shares used in Adjusted Diluted EPS | 47,019,741 | 37,331,820 | |||||||||
| Adjusted Diluted EPS | $ | 0.06 | $ | (0.17) | |||||||
1 - Represents foreign exchange loss (gain) due to foreign currency transactions.
2 - Represents professional service fees primarily comprised of legal fees as well as other miscellaneous non-operating/non-recurring items.
Liquidity and Capital Resources
Our main sources of liquidity have been our cash and cash equivalents, cash generated from operations, and proceeds from issuances of stock and the incurrence of debt. Our main uses of cash are funds to operate our business, make principal and interest payments on our outstanding debt, and capital expenditures.
Our future capital requirements will depend on many factors, including our growth rate. Over the past several years, operating expenses have increased as we have invested in growing our business. Payments of principal and interest on our debt and earnout cash payments following our acquisitions have also been substantial cash outflows. Our operating cash requirements may increase in the future as we continue to invest in the growth of our Company.
In addition, we have a substantial amount of debt and other obligations. We do not currently have sufficient available cash flows to service our upcoming payment commitments and may not have sufficient cash flows or assets to repay our debt and other obligations in full when due. However, any such event of default related to the April 15, 2023, June 15, 2023, or September 15, 2023 payments under the Blue Torch Credit Facility will not result in Blue Torch’s ability to accelerate any indebtedness but additional paid in kind fees will be added to the outstanding principal amount of the Blue Torch Credit Facility term loan. If the Company meets these payments timely, no paid-in-kind fees will be incurred. Provisions of our senior credit agreements also restrict us from paying certain near-term obligations and subordinated indebtedness. We have defaulted on certain financial covenants in our credit agreements and have requested and obtained waivers from our lenders and made significant amendments to our credit agreements to reset those covenants. These waivers and amendments have required us to commit to pay additional fees to our lenders, which in some cases have substantially changed our original debt terms.
67
Our failure to pay any of these amounts will be a payment default under the terms of those agreements. Defaulting on our near-term obligations to Exitus Capital and Monroe would allow Exitus Capital to accelerate the amounts due under their respective loan or allow Monroe to seek to enforce our obligation to repay the Monroe Deferred Fees. In addition, our failure to pay the indebtedness due to Exitus Capital will be a cross-default under both the Blue Torch Credit Facility and the Second Lien Facility, but would not allow either of Blue Torch or the Second Lien Lenders to accelerate indebtedness due under their respective loans unless Exitus Capital accelerates the amounts due to it.
In order to comply with our upcoming payment commitments, we are planning to access different sources of funding, including potentially through issuances of our common stock or other securities, debt financing or refinancing, other commercial arrangements or a combination of such alternatives. To the extent we raise additional capital through the sale of our common stock or securities convertible into our common stock, the ownership interests of our existing shareholders will be diluted, perhaps substantially. We also intend to refinance the Blue Torch Credit Facility and are in active discussions with potential lenders regarding this strategy.
There is no assurance that we will be successful in raising additional funds, refinancing our indebtedness or revising the payment terms of our near-term obligations. If we are unable to obtain sufficient financial resources or revise such payment terms, we may be required to adopt one or more alternatives, such as restructuring our indebtedness or selling material assets or operations.
As of December 31, 2022 and February 28, 2023, we had $8.5 million and $3.5 million, respectively, of available cash and cash equivalents. We believe that we will have sufficient financial resources to fund our operations for the next 12 months. In addition, we believe that the plans discussed in the prior paragraph are sufficient to allow us to comply with our upcoming payment commitments.
We are continuously looking to implement strategies to improve our profitability and reduce expenses. Our ability to generate additional cash flows will be dependent on increasing revenues, securing stronger profit margins, and, as noted above, reducing debt. In order to increase cash flows from operating activities, we are implementing cost reduction initiatives to reduce selling, general, and administrative expenses, in particular reducing overhead in non-revenue production activities. In addition, our investments made to increase our sales team during the past six months are expected to contribute to positive revenue growth and stronger gross margins.
Debt
The table below sets forth all principal amounts of our indebtedness and related obligations as of February 28, 2023 and upcoming principal payments within the next 12 months.
| 2023 Principal Payment Due Dates and Amounts (excluding interest) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Obligation at February 28, 2023 | March 31 | April 15 | May 25 | June 15 | July 27 | Sept 15 | Nov 15 | Dec 31 | Equity Settlement | ||||||||||||||||||||||||||||||||||||||||||||||||||
Blue Torch Credit Facility(a) | $ | 63.5 | $ | — | $ | 15.0 | $ | — | $ | 5.0 | $ | — | $ | 5.0 | $ | — | $ | 0.7 | N/A | ||||||||||||||||||||||||||||||||||||||||
Second Lien Facility(b) | 19.4 | — | — | — | — | — | — | — | — | $8.6 | |||||||||||||||||||||||||||||||||||||||||||||||||
Exitus Capital Subordinated Debt(c) | 1.6 | — | — | — | — | 1.6 | — | — | — | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||
AGS Subordinated Promissory Note(c) | 0.8 | 0.8 | — | — | — | — | — | — | — | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||
| Other | 0.2 | — | — | — | — | — | — | — | — | N/A | |||||||||||||||||||||||||||||||||||||||||||||||||
Monroe Deferred Fees (c) | 3.5 | — | — | 3.5 | — | — | — | — | — | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||
Purchase Price Obligation Note Payable(d) | 10.2 | — | — | — | — | — | — | 2.4 | — | $2.4 | |||||||||||||||||||||||||||||||||||||||||||||||||
(a) Defaults on the April 15, 2023, June 15, 2023, or September 15, 2023, payments will result in additional paid in kind fees of $4.0 million, $2.0 million and $3.0 million, respectively. However, any such events of default will not result in Blue Torch’s ability to accelerate any indebtedness. Amount outstanding at February 28, 2023 does not include an additional paid in kind fee of $0.5 million added to the term loan as of March 9, 2023.
(b) As of February 28, 2023 Credit Suisse represented $10.8 million of the Second Lien Facility. Credit Suisse may convert their outstanding loans, interest, and fees into the Company’s common stock to the closing price of one share of our common stock on the trading day immediately prior to the conversion date, subject to a floor price of $4.64 per share. As of February 28, 2023 Nexxus Capital represented $8.6 million of the Second Lien Facility. Nexxus Capital will convert their outstanding loans, interest, and fees into the Company’s common stock at $4.64 per share upon maturity, June 15, 2023.
(c) On December 29, 2021, the Company issued common stock to Monroe as collateral for the outstanding deferred fees. On February 10, 2023, the Company issued common stock to Exitus Capital and AGS Group as collateral for the outstanding principal and interest. Each of Monroe, Exitus Capital and AGS Group may sell those shares and apply 100% of the net proceeds therefrom to repay our obligations. If the net proceeds from sales of the shares exceed the obligations owed by the Company, the relevant party shall remit such excess cash proceeds to the Company. Upon payment in full of the respective obligation in cash by us or through sales of the shares, the relevant party shall return any of the unsold shares to us.
(d) As of February 28, 2023 AN Extend represented $2.4 million of the purchase price obligation note payable. If AN Extend is not paid in full prior to the maturity date, November 15, 2023, the total amount of principal and the interest will be converted within the following 30 calendar days counted from the maturity date with shares of common stock, taking as value of the shares the value resulting from using the Volume Weighted Moving Average Price.
68
In addition, the Blue Torch Credit Facility and the Second Lien Facility restrict our ability to make payments on outstanding obligations, including the Monroe Deferred Fees and the indebtedness due to Exitus Capital and AGS Group, unless we satisfy certain financial covenants and there is no event of default that has occurred and is continuing.
The following paragraphs further summarize the material terms of our indebtedness and related payment obligations. See also “Risk Factors – Risks Related to Our Financial Position and Need for Additional Capital” for additional information. For additional information, see Note 9, Long-term Debt, to our consolidated financial statements appearing in this Annual Report on Form 10-K.
Blue Torch Credit Facility
On May 27, 2022, the Company entered into a financing agreement ("Blue Torch Credit Facility") by and among the Company, AN Global LLC, certain subsidiaries of the Company, as guarantors (the “Guarantors”), the financial institutions party thereto as lenders, and Blue Torch Finance LLC (“Blue Torch”), as the administrative agent and collateral agent. The Blue Torch Credit Facility is secured by substantially all of the Company’s and the Guarantors’ properties and assets and provides for a term loan of $55.0 million and a revolving credit facility with an aggregate principal limit not to exceed $3.0 million at any time outstanding, both of which were fully drawn as of June 28, 2022. We used approximately $40.2 million from the Blue Torch financing agreement to refinance the outstanding principal, interest, and a portion of the $6.9 million deferred fees related amendments on our Prior First Lien Credit Facility. The remaining $14.8 million from the Blue Torch Credit Facility was used to pay approximately $9.0 million of certain past-due accounts and approximately $5.8 million was used for operations and general corporate purposes.
The Company entered into a waiver and amendment on August 10, 2022 and an amendment on November 1, 2022, in each case to provide for an extension to satisfy certain post-closing obligations under the Blue Torch Credit Facility. The Company recognized $0.6 million in debt issuance costs related to the August waiver and amendment.
As of December 31, 2022, the Company was in default under the permitted factoring disposition and leverage ratio covenants. Subsequent to December 31, 2022, the Company was also in default under the leverage ratio, liquidity, aged accounts payable, permitted payments and other covenants under the Blue Torch Credit Facility. As a result of such defaults, the Company entered into a waiver and amendment on March 7, 2023 (“Amendment No.4”) to revise significant terms of the Blue Torch Credit Facility as set forth below.
Pursuant to Amendment No.4, the Company agreed to pay approximately $34.0 million of our total indebtedness and related obligations in 2023, including principal payments of $15.0 million by April 15, 2023, $20.0 million by June 15, 2023 (inclusive of the $15.0 million by April 15, 2023 if not paid by then) and $25.0 million by September 15, 2023 (inclusive of the $20.0 million by June 15, 2023 if not paid by then) to the Blue Torch Lenders. Thereafter, the Company will make quarterly payments on the term loan of approximately $0.7 million starting December 31, 2023. The amendment also revised the maturity date of the Blue Torch Credit Facility from May 27, 2026 to January 1, 2025 and revised the interest provisions to remove the step-down in interest rate based on the Company’s total leverage ratio. Interest is paid quarterly for both loans, and is calculated based on the Adjusted Term SOFR (the three-month Term Secured Overnight Financing Rate, plus 0.26161%) plus a margin of 9.0% annually. Interest on each loan is payable on the last day of the then effective interest period applicable to such loan and at maturity. The revolving credit facility will bear a 2.0% annual usage fee on any undrawn portion of the facility. In connection with Amendment No.4, the Company agreed to pay the administrative agent a fee equal to $6.0 million, which was paid in kind by adding such capitalized amount to the outstanding principal of the term loan. In addition, if the Company fails to repay the respective aggregate principal amounts on or prior to April 15, 2023, June 15, 2023 and September 15, 2023, a failed payment fee equal to $4.0 million, $2.0 million and $3.0 million respectively will be paid in kind by adding such fee to the outstanding principal of the term loan. If we meet these payments when due then no fee will be incurred. Failure to make these payments would constitute an event of default but will not result in the ability of the administrative agent to accelerate indebtedness under the Blue Torch Facility. Amendment No. 4 also required the Company to engage both a financial advisor to support the Company’s capital raising needs and an operational advisor to conduct a formal assessment of the Company’s financial performance, in both cases on terms reasonable acceptable to Blue Torch.
Lastly, Amendment No.4 granted a waiver for the covenant breaches and reset the covenant requirements for future periods.
The covenants were amended as follows:
69
Revenue. Requires the Company's trailing annual aggregate revenue to exceed $150.0 million as of the end of each computation period as described below. No changes to this covenant were made as a result of this amendment.
| Computation Period Ending | Revenue | |||||||
| December 31, 2022 | $ | 150,000,000 | ||||||
| March 31, 2023 and each fiscal month ending thereafter | 150,000,000 | |||||||
Liquidity. Prior to Amendment No.4, the Blue Torch Credit Facility required the Company's liquidity to be above $5.0 million at any time during the effective duration of the agreement. As a result of Amendment No.4, the Company is required to maintain liquidity above $1.0 million through March 24, 2023, above $2.0 million through April 15, 2023, and above $7.0 million at any time thereafter. Liquidity is defined as the remaining capacity under the Blue Torch Credit Facility plus the total unrestricted cash on hand.
Leverage Ratio. The Leverage Ratio applies to the consolidated group and is determined in accordance with US GAAP. Prior to Amendment No. 4, it was calculated as of the last day of each quarterly computation period as the ratio of (a) total debt (as defined in the Blue Torch Facility) to (b) EBITDA for the computation period ending on such day. The following tables represent our leverage ratio covenant requirements as of each computation period before and after the effective date of Amendment No. 4. A computation period is any period of four consecutive fiscal quarters for which the last fiscal month ends on a date set forth below.
Prior to amendment
| Computation Period Ending | Leverage Ratio | |||||||
| December 31, 2022 | 4.00:1.00 | |||||||
| March 31, 2023 | 3.75:1.00 | |||||||
| June 30, 2023 and each quarter ending thereafter | 3.50:1.00 | |||||||
Following the amendment
| Computation Period Ending | Leverage Ratio | |||||||
| March 31, 2023 | 6.38:1.00 | |||||||
| April 30, 2023 | 6.60:1.00 | |||||||
| May 31, 2023 | 6.20:1.00 | |||||||
| June 30, 2023 | 6.00:1.00 | |||||||
| July 31, 2023 | 5.28:1.00 | |||||||
| August 31, 2023 | 4.51:1.00 | |||||||
| September 30, 2023 | 4.12:1.00 | |||||||
| October 31, 2023 | 3.50:1.00 | |||||||
| November 30, 2023 | 3.14:1.00 | |||||||
| December 31, 2023 | 4.63:1.00 | |||||||
| January 31, 2024 and each fiscal month ending thereafter | 3.50:1.00 | |||||||
EBITDA. Following the effective date of Amendment No.4, if the Company fails to make the $15.0 million payment and related obligations by April 15, 2023, the Company will be subjected to a consolidated earnings before interest, taxes, depreciation and amortization (“EBITDA”) covenant requirement. The Company will be required to maintain a 12-month trailing EBITDA of at least the following for each fiscal month end.
70
| Computation Period Ending | EBITDA | |||||||
| March 31, 2023 | $ | 9,953,000 | ||||||
| April 30, 2023 | 9,627,000 | |||||||
| May 31, 2023 | 10,238,000 | |||||||
| June 30, 2023 | 10,607,000 | |||||||
| July 31, 2023 | 12,023,000 | |||||||
| August 31, 2023 | 14,055,000 | |||||||
| September 30, 2023 | 15,415,000 | |||||||
| October 31, 2023 | 18,117,000 | |||||||
| November 30, 2023 | 20,224,000 | |||||||
| December 31, 2023 and each fiscal month end thereafter | 13,707,000 | |||||||
Second Lien Facility
On November 22, 2021, the Company entered into a Second Lien Facility (the “Second Lien Facility”) with Credit Suisse and Nexxus Capital (both of which are existing AgileThought shareholders and have representation on AgileThought’s Board of Directors), Manuel Senderos, Chief Executive Officer and Chairman of the Board of Directors, and Kevin Johnston, Global Chief Operating Officer (the “Second Lien Lenders”). The Second Lien Facility provides for a term loan facility, with Tranches for each of the Second Lien Lenders, in an initial aggregate principal amount of approximately $20.7 million, accruing paid in kind interest at a rate per annum from 11.00% for the US denominated loan and 17.41% for the Mexican Peso denominated Loan. The Second Lien Facility had an original maturity date of March 15, 2023 and an original conversion price of $10.19 per share, both of which were subsequently amended as described below. The Company recognized $0.9 million in debt issuance costs in connection with the execution of the Second Lien Facility.
On August 10, 2022, the Company entered into an amendment to the Second Lien Facility to extend the maturity date of the Credit Suisse, Senderos and Johnston loans to September 15, 2026, and provide for potential increases, that step up over time from one percent to five percent, in the interest rate applicable to the Credit Suisse loans. The amendment also extends the maturity date of the Nexxus Capital loans to June 15, 2023 and provides for the mandatory conversion of the Nexxus Capital loans thereunder, including interest and fees, into common stock of the Company upon the maturity at a conversion price equal to $4.64 per share. The amendment also provided for the covenants and certain other provisions of the Second Lien Facility to be consistent with those in the Blue Torch Credit Facility (and in certain cases for those covenants to be made less restrictive than those in the Blue Torch Credit Facility). This amendment was determined to substantially alter the Second Lien Facility such that extinguishment accounting would be applied. The Company recognized a loss on debt extinguishment of $11.7 million for the three months ended September 30, 2022. As part of the reassessment of the Second Lien Facility, the Company bifurcated the conversion option on the Mexican peso-dominated loans and recognized an embedded derivative liability of $9.0 million as of the amendment date. See Note 4, Fair Value Measurements, for additional information.
On November 18, 2022, the Company entered into a letter agreement with Credit Suisse to modify the conversion price at which the Credit Suisse lenders may convert their outstanding loans, interest, and fees common stock of the Company to the closing price of one share of our common stock on the trading day immediately prior to the conversion date, subject to a floor price of $4.64 per share. This amendment was determined to substantially alter the Credit Suisse portion of the Second Lien Facility such that extinguishment accounting was applied. The Company recognized a gain on debt extinguishment of $8.8 million for the three months ended December 31, 2022. The total loss on debt extinguishment related to the Second Lien Facility was $2.9 million for the twelve months ended December 31, 2022.
Each Second Lien Lender has the option to convert all or any portion of its outstanding loans, interest and fees into common stock of the Company at any time at the respective conversion prices. On December 27, 2021, Manuel Senderos and Kevin Johnston exercised the conversion options for their respective principal amounts of $4.5 million and $0.2 million, respectively, at the original conversion price of $10.19 per share. See Note 16, Stockholders’ Equity, for additional information. As noted above, on June 15, 2023, the outstanding principal, interest and fees related to the Nexxus Capital loans will convert into common stock of the Company at the conversion price of $4.64 per share. As of December 31, 2022, the outstanding principal, interest and fees related to the Nexxus Capital loans was $8.6 million.
71
On March 7, 2023, in connection with Amendment No. 4 to the Blue Torch Credit Facility, the Company entered into a sixth amendment to the Second Lien Facility (“Amendment No. 6”). Amendment No. 6 revised the maturity date of the Credit Suisse loans from September 15, 2026 to July 1, 2025. Amendment No. 6 also provided for the covenants and certain other provisions of the Second Lien Facility to be consistent with those in the Blue Torch Credit Facility, as amended by Amendment No. 4, except as set forth below:
Revenue. Requires the Company's trailing annual aggregate revenue to exceed $120.0 million as of the end of each computation period as described below. Prior to Amendment No.6, the revenue was required to exceed $130.0 million for the same periods listed below.
| Computation Period Ending | Revenue | |||||||
| December 31, 2022 | $ | 120,000,000 | ||||||
| March 31, 2023 and each fiscal month ending thereafter | 120,000,000 | |||||||
Liquidity. Prior to Amendment No. 6, the Second Lien Facility required the Company's liquidity to be above $3.0 million at any time during the effective duration of the agreement. Following Amendment No. 6, we are required to maintain liquidity (i) above $0.8 million at any time on or prior to March 24, 2023, (ii) above $1.6 million at any time from March 24, 2023 to April 15, 2023, (iii) and above $5.6 million after April 15, 2023 thereafter. Liquidity is defined as the remaining capacity under the Second Lien Facility plus the total unrestricted cash on hand.
Leverage Ratio. The Leverage Ratio applies to the consolidated group and is determined in accordance with US GAAP. Prior to Amendment No. 6, it is calculated as of the last day of each quarterly computation period as the ratio of (a) total debt (as defined in the Second Lien Facility) to (b) EBITDA for the computation period ending on such day. The following tables represent our leverage ratio covenant requirements as of each computation period before and after the effective date of Amendment No.6. A computation period is any period of four consecutive fiscal quarters for which the last fiscal month ends on a date set forth below.
Prior to amendment
| Computation Period Ending | Leverage Ratio | |||||||
| December 31, 2022 | 4.80:1.00 | |||||||
| March 31, 2023 | 4.50:1.00 | |||||||
| June 30, 2023 and each quarter ending thereafter | 4.20:1.00 | |||||||
Following the amendment
| Computation Period Ending | Leverage Ratio | |||||||
| March 31, 2023 | 7.65:1.00 | |||||||
| April 30, 2023 | 7.92:1.00 | |||||||
| May 31, 2023 | 7.44:1.00 | |||||||
| June 30, 2023 | 7.20:1.00 | |||||||
| July 31, 2023 | 6.34:1.00 | |||||||
| August 31, 2023 | 5.41:1.00 | |||||||
| September 30, 2023 | 4.94:1.00 | |||||||
| October 31, 2023 | 4.20:1.00 | |||||||
| November 30, 2023 | 3.77:1.00 | |||||||
| December 31, 2023 | 5.56:1.00 | |||||||
| January 31, 2024 and each fiscal quarter ending thereafter | 4.20:1.00 | |||||||
EBITDA. Following the effective date of Amendment No. 6, if the Company fails to make the $15.0 million payment and related obligations to Blue Torch by April 15, 2023, the Company will be subjected to a consolidated earnings before
72
interest, taxes, depreciation and amortization (“EBITDA”) covenant requirement. The Company will be required to maintain a 12-month trailing EBITDA of at least the following for each fiscal month end.
| Computation Period Ending | EBITDA | |||||||
| March 31, 2023 | $ | 7,962,400 | ||||||
| April 30, 2023 | 7,701,600 | |||||||
| May 31, 2023 | 8,190,400 | |||||||
| June 30, 2023 | 8,485,600 | |||||||
| July 31, 2023 | 9,618,400 | |||||||
| August 31, 2023 | 11,244,000 | |||||||
| September 30, 2023 | 12,332,000 | |||||||
| October 31, 2023 | 14,493,600 | |||||||
| November 30, 2023 | 16,179,200 | |||||||
| December 31, 2023 and each fiscal month end thereafter | 10,965,600 | |||||||
AGS Subordinated Promissory Note
On June 24, 2021, the Company entered into a credit agreement with AGS Group LLC (“AGS Group”) for a principal amount of $0.7 million (the “AGS Subordinated Promissory Note”). The principal amount outstanding under the AGS Subordinated Promissory Note matured on December 20, 2021 (“Original Maturity Date”) but was extended multiple times until March 31, 2023 (“Extended Maturity Date”). Interest is due and payable in arrears on the Original Maturity Date at a 14.0% per annum until and including December 20, 2021 and at 20% per annum from the Original Maturity Date to the Extended Maturity Date calculated on the actual number of days elapsed. In connection with an extension of the maturity date on January 31, 2023, the Company also agreed to issue shares of common stock with a value of approximately $1.8 million, equal to approximately two times the then outstanding principal and interest of the AGS Subordinated Promissory Note. We issued 414,367 shares on February 10, 2023 that are intended to serve as collateral. Upon the earlier of the Extended Maturity Date or an event of default, AGS Group may sell those shares and apply 100% of the net proceeds therefrom to repay the AGS Subordinated Promissory Note. If the net proceeds from sales of the shares exceed the indebtedness owed by the Company, AGS Group shall remit such excess cash proceeds to the Company. Upon payment in full of the AGS Subordinated Promissory Note in cash by us or through sales of the shares by AGS Group, AGS Group shall return any of the unsold shares to us.
Under the terms of the Blue Torch Credit Facility and the Second Lien Facility, we may only repay the AGS Subordinated Promissory Note with the proceeds of an equity issuance, and then only if our total leverage ratio is 2.50 to 1.00 or less and we are in compliance with all financial covenants and no event of default has occurred and is continuing under the Blue Torch Credit Facility and the Second Lien Facility. We do not expect to satisfy these conditions on or before the Extended Maturity Date and have entered into a letter agreement with AGS Group to provide that our failure to pay such indebtedness will not be deemed an event of default. We plan to further extend the maturity date or substitute the AGS Subordinated Promissory Note as may be permitted under the Blue Torch Credit Facility or the Second Lien Facility. Any such agreements could be subject to the prior consent of Blue Torch and the Second Lien Lenders.
Exitus Capital Subordinated Debt
On July 26, 2021, the Company agreed with existing lenders and Exitus Capital, S.A.P.I. de C.V., SOFOM, E.N.R. (“Exitus Capital”) to enter into a zero-coupon subordinated loan agreement with Exitus Capital in an aggregate principal amount equal to $3.7 million (the “Exitus Capital Subordinated Debt”). Net loan proceeds totaled $3.2 million, net of $0.5 million in debt discount. No periodic interest payments are currently required and the loan was due on January 26, 2022, but was extended for three additional six month terms until July 27, 2023. With respect to each six month extension, the Company recognized approximately $0.4 million to $0.5 million in debt issuance costs. The loan is subject to a 36% annual interest moratorium if full payment is not made upon the maturity date. In addition, the Company paid approximately $1.1 million of the principal amount of the loan on January 27, 2023, plus a fee of approximately $0.5 million. On February 27, 2023 the Company paid an addition $1.0 million of the principal amount of the loan. The remaining principal amount of approximately $1.6 million will be due and payable on the new maturity date of July 27, 2023.
In addition, on January 31, 2023, the Company agreed to issue shares of Class A Common Stock with a value of approximately $5.2 million, equal to approximately two times the then outstanding principal and interest of the Exitus
73
Capital Subordinated Debt. We issued 1,207,712 shares on February 10, 2023 that are intended to serve as collateral. The Company is obligated to issue additional shares to Exitus Capital from time to time if the value of the shares held by them is less two times than the outstanding principal amount of the loan. Upon the earlier of the July 27, 2023 or an event of default, Exitus Capital may sell those shares and apply 100% of the net proceeds therefrom to repay the Exitus Capital Subordinated Debt. If the net proceeds from sales of the shares exceed the indebtedness owed by the Company, Exitus Capital shall remit such excess cash proceeds to the Company. Upon payment in full of the Exitus Capital Subordinated Debt in cash by us or through sales of the shares by Exitus Capital, Exitus Capital shall return any of the unsold shares to us.
Under the terms of the Blue Torch Credit Facility and the Second Lien Facility, we may only repay the Exitus Capital Subordinated Debt if we have repaid Blue Torch $15.0 million and $5.0 million by April 15, 2023 and June 15, 2023, respectively. If we are unable to satisfy these conditions, the Company plans to further extend the maturity date or substitute the Exitus Capital Subordinated Debt as may be permitted under the Blue Torch Credit Facility and the Second Lien Facility. Any such modifications are also subject to the prior consent of Blue Torch and the Second Lien Lenders. Our failure to pay the indebtedness due to Exitus Capital will be a payment default under its terms, which would allow Exitus Capital to accelerate the indebtedness. In addition, our failure to pay Exitus Capital will be a cross-default under both the Blue Torch Credit Facility and Second Lien Facility, but would not allow either of the Blue Torch or Second Lien Lenders to accelerate indebtedness due under their respective loans unless Exitus Capital accelerates the amounts due to it.
Paycheck Protection Program Loans
On April 30, 2020 and May 1, 2020, the Company received Paycheck Protection Program Loans (“PPP Loans”) through four of its subsidiaries for a total amount of $9.3 million. The PPP loans bear a fixed interest rate of 1% over a two-year term, are guaranteed by the United States federal government, and do not require collateral. The loans may be forgiven, in part or whole, if the proceeds are used to retain and pay employees and for other qualifying expenditures. The Company submitted its forgiveness applications to the Small Business Administration (“SBA”) between November 2020 and January 2021. The monthly repayment terms were established in the notification letters with the amount of loan forgiveness. On December 25, 2020, $0.1 million of a $0.2 million PPP loan was forgiven. On March 9, 2021, $0.1 million of a $0.3 million PPP loan was forgiven. On June 13, 2021, $1.2 million of a $1.2 million PPP loan was forgiven. On January 19, 2022, $7.3 million of a $7.6 million PPP loan was forgiven resulting in a remaining PPP Loan balance of $0.3 million of which $0.1 million is due within the next year. The remaining payments will be made quarterly until May 2, 2025. All loan forgiveness was recognized in Other income (expense), net of the Consolidated Statements of Operations.
Prior First Lien Facility
In 2018, the Company entered into a credit agreement with Monroe Capital Management Advisors LLC, or Monroe, as administrative agent and the financial institutions listed therein, as lenders (the “Prior First Lien Facility”). The Prior First Lien Facility provided for a $5.0 million revolving credit facility and $98.0 million term loan facility. We repaid approximately $68.9 million under the Monroe credit agreement during the year ended 2021, primarily using $20.0 million of proceeds from an offering of preferred stock, $20.0 million of proceeds from the Second Lien Facility, $13.7 million of proceeds from an offering of common Stock and $4.3 million received in connection with the closing of the business combination.
The remaining deferred fees of $3.5 million are due to Monroe on May 25, 2023 (the “Monroe Deferred Fees”). An affiliate of Monroe holds 2,016,129 shares of our common Stock and may sell those shares and apply 100% of the net proceeds therefrom to repay the Monroe Deferred Fees. If the net proceeds from sales of the shares exceed the Monroe Deferred Fees owed by the Company, the affiliate shall remit such excess cash proceeds to the Company. Upon payment in full of the Monroe Deferred Fees in cash by us or through sales of the shares by Monroe’s affiliate, the affiliate shall return any of the unsold shares to us.
Under the terms of the Blue Torch Credit Facility and the Second Lien Facility, we may only repay the Monroe Deferred Fees only if our total leverage ratio is 3.00 to 1.00 or less or 3.20 to 1.00 or less respectively, and we are in compliance with all financial covenants and no event of default has occurred and is continuing under the Blue Torch Credit Facility and the Second Lien Facility. If we are unable to satisfy these conditions, we will be unable to pay the Monroe Deferred Fees when due on May 25, 2023. Although Monroe may sell the Monroe Supporting Shares to repay the Monroe Deferred Fees, there is no assurance that they will be able to do so or that they will not enforce our obligation to repay the Monroe Deferred Fees.
74
Furthermore, we are required to issue a warrant to Monroe to purchase $7.0 million of our common stock for nominal consideration. We may be required to pay Monroe cash to the extent that we cannot issue some or all of the warrants due to regulatory restrictions.
Prior Second Lien Facility
On July 18, 2019, the Company entered into separate credit agreements with Nexxus Capital and Credit Suisse (“the Creditors”) and borrowed $12.5 million from each bearing 13.73% interest. On January 31, 2020, the agreements were amended to increase the borrowing amount by $2.05 million under each agreement. Interest was capitalized every six months and payable upon maturity. Immediately prior to the Business Combination in August 2021, the Creditors exercised their option to convert their combined $38.1 million of debt outstanding (including interest) into 115,923 shares of the Company's Class A ordinary shares, which were converted into the Company's common stock as a result of the Business Combination. Concurrently with the conversion, the Company amortized the remaining $0.1 million of unamortized debt issuance costs and recognized incremental interest expense in the Consolidated Statements of Operations for the year ended December 31, 2021.
For additional information, see Note 9, Long-term Debt, to our consolidated financial statements appearing in this Annual Report on Form 10-K.
Earnout Obligations
As of December 31, 2022 and 2021, outstanding cash earnouts were $10.2 million and $8.8 million, respectively. Outstanding balance accrues interest at an annual interest rate of 12%. The balance shown at December 31, 2022 and December 31, 2021 includes the related accrued interest. As of December 31, 2022, the earnout obligation is related to two prior acquisitions of AN Extend and AgileThought LLC with a total liability of $2.4 million and $7.8 million respectively. The AN Extend and AgileThought LLC obligation accrues interest at a rate of 11% and 12% respectively. The contingent earnout liability accrued is measured to fair value by an independent third-party expert. In order for the Company to make payments for its contingent purchase price obligations, in addition to having sufficient cash resources to make the payments themselves, the Company must be in pro forma compliance after giving effect to the earnout payments with liquidity and other financial and other covenants included in the Blue Torch Credit Facility and the Second Lien Facility. The Company has not been able to satisfy those covenants to date in connection with the accrued earnout payments. Whether the Company is able to satisfy those covenants will depend on the Company’s overall operating and financial performance.
On November 15, 2022, the Company entered into an amendment to change terms of the AN Extend portion of the purchase price obligation note payable. The amendment converted the note from Mexican pesos to U.S. dollars with capitalized interest added, set the applicable interest to 11% annually, set a maturity date of November 15, 2023. If the note is not paid in full prior to the maturity date, the total amount of principal and the interest will be converted within the following 30 calendar days counted from the date of the maturity date with shares of common stock, taking as value of the shares the value resulting from using the Volume Weighted Moving Average Price.
There can be no assurance that we will have sufficient cash flows from operating activities, cash on hand or access to borrowed funds to be able to make any contingent purchase price payments when required to do so, and any failure to do so at such time could have a material adverse effect on our business, financial condition, results of operations and prospects.
Cash Flows
The following table summarizes our consolidated cash flows for the periods presented:
| Year Ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Net cash used in operating activities | $ | (8,292) | $ | (23,223) | |||||||
| Net cash used in investing activities | (1,018) | (916) | |||||||||
| Net cash provided by financing activities | 9,485 | 23,551 | |||||||||
Operating Activities
Net cash used in operating activities for the year ended December 31, 2022 decreased by approximately $14.9 million to $8.3 million from $23.2 million for the year ended December 31, 2021. The decrease was mainly driven by changes in
75
our operating assets and liabilities which increased $7.6 million on a year over year basis, an increase of $7.4 million in non-cash items, offset by an increase of $0.1 million in net loss.
The increase of $7.6 million resulting from changes in our operating assets and liabilities was primarily driven by (i) a decrease of $13.4 million in accounts receivable, (ii) a decrease $5.2 million in prepaid expenses, other current assets, and other noncurrent assets, (iii) an increase of approximately $3.8 million in accrued liabilities, (iv) an increase of $0.4 million of deferred revenue, (v) a decrease of $0.2 million in current VAT receivables and other taxes payable, and (vi) and an increase of $0.1 million in income tax payable partially offset by (i) a decrease of $13.6 million in accounts payable and (ii) a $1.9 million decrease in the lease liability.
The increase of $7.4 million in non-cash items was driven by (i) a $9.7 million loss on extinguishment of debt, (ii) the increase of $1.1 million from the fair value of embedded derivative liabilities, (iii) the increase of $2.3 million from the change in obligations for contingent purchase price, (iv) the increase of $4.9 million of changes in fair value of warrant liability, and (v) the increase of $1.0 million in deferred income tax provision, and partially offset by (i) the decrease of $0.7 million of share-based compensation, (ii) the decrease of $0.1 million in amortization of right-of-use assets, (iii) the decrease of $2.5 million in foreign currency remeasurement, (iv) the decrease of $6.0 million gain on forgiveness of debt, (v) the decrease of $0.4 million in accretion on convertible notes, (vi) the decrease of $1.3 million in bad debt expense, and (vii) the decrease of $0.6 million in amortization of debt issuance costs.
Investing Activities
Net cash used in investing activities for the year ended December 31, 2022 decreased $0.1 million to $1.0 million from $0.9 million for the year ended December 31, 2021 as a result of a decrease in capital expenditures.
Financing Activities
Net cash provided by financing activities for the year ended December 31, 2022 decreased $14.1 million to 9.5 million from $23.6 million for the year ended December 31, 2021. The decrease in net cash provided was primarily driven by (i) a decrease in proceeds from $27.6 million of PIPE financing, (ii) a decrease in $25.7 million decrease in capital contributions, (iii) an increase of $8.7 million for cash paid for debt issuance costs, (iv) an increase of $0.6 million of tax withholding for equity-based compensation, (v) an increase of $0.1 million in finance lease payments, and (vi) a decrease of $24.9 million from the 2021 follow on issuance offset by (i) a $33.5 million increase in proceeds from loans (ii) a decrease in repayment of borrowings of $23.9 million (iii) a decrease in PIPE transaction costs of $13.0 million, and (iv) a decrease of $3.1 million in transaction costs for the follow on share issuance.
Contractual Obligations and Commitments
The following table summarizes our contractual obligations as of December 31, 2022:
| Payments Due By Period | |||||||||||||||||||||||||||||
| (in thousands USD) | Total | Less than 1 Year1 | 1-3 Years | 3-5 Years | More than 5 Years | ||||||||||||||||||||||||
Debt and Note Payable obligations1 | $ | 95,711 | $ | 44,599 | $ | 51,068 | $ | 44 | $ | — | |||||||||||||||||||
| Lease obligations | 6,818 | 2,746 | 4,072 | — | — | ||||||||||||||||||||||||
| Total | $ | 102,529 | $ | 47,345 | $ | 55,140 | $ | 44 | $ | — | |||||||||||||||||||
1 Excludes $6.0 million in capitalized fees from the amendment entered into with Blue Torch on February 28, 2023 and $0.1 million in capitalized interest on the Subordinated Promissory note from the amendment entered into on January 31, 2023.
The commitment amounts in the table above are associated with contracts that are enforceable and legally binding and that specify all significant terms, including fixed or minimum services to be used, fixed, minimum or variable price provisions, and the approximate timing of the actions under the contracts. The table does not include obligations under agreements that we can cancel without a significant penalty.
For additional information on our debt and lease obligations, see Note 9, Long-term Debt and Note 8, Leases in our audited consolidated financial statements. See also Management's Discussion and Analysis - Liquidity and Capital Resources, Debt.
76
Critical Accounting Policies
We believe that the following accounting policies involve a high degree of judgment and complexity. Accordingly, these are the policies we believe are the most critical to aid in fully understanding and evaluating our consolidated financial condition and results of our operations. See Note 2, Summary of Significant Accounting Policies, to our audited consolidated financial statements included in this Annual Report on Form 10-K for a description of our other significant accounting policies. The preparation of our consolidated financial statements in conformity with U.S. GAAP requires us to make estimates and judgments that affect the amounts reported in those financial statements and accompanying notes. Although we believe that the estimates we use are reasonable, due to the inherent uncertainty involved in making those estimates, actual results reported in future periods could differ from those estimates.
Revenue Recognition
The Company recognizes revenue in accordance with Financial Accounting Standards Board’s (“FASB”) Account Standards Codification (“ASC”) 606, Revenue from Contracts with Customers.
Revenue is recognized when or as control of promised products or services are transferred to the customer in an amount that reflects the consideration the Company expects to receive in exchange for those products or services. In instances where revenue is recognized over time, the Company uses an appropriate input or output measurement method, typically based on the contract or labor volume.
The Company applies judgment in determining the customer’s ability and intention to pay based on a variety of factors, including the customer’s historical payment experience. If there is uncertainty about the receipt of payment for the services, revenue recognition is deferred until the uncertainty is sufficiently resolved. Our payment terms are based on customary business practices and can vary by region and customer type, but are generally 30-90 days. Since the term between satisfaction of the performance obligation and payment receipt is less than a year, we do not adjust the transaction price for the effects of a financing component.
The Company may enter into arrangements that consist of any combination of our deliverables. To the extent a contract includes multiple promised deliverables, the Company determines whether promised deliverables are distinct in the context of the contract. If these criteria are not met, the promised deliverables are accounted for as a single performance obligation. For arrangements with multiple distinct performance obligations, we allocate consideration among the performance obligations based on their relative standalone selling price. The standalone selling price is the price at which we would sell a promised good or service on an individual basis to a customer. When not directly observable, the Company generally estimates standalone selling price by using the expected cost plus a margin approach. The Company reassesses these estimates on a periodic basis or when facts and circumstances change.
Revenues related to software maintenance services are recognized over the period the services are provided using an output method that is consistent with the way in which value is delivered to the customer, generally straight lined on a monthly basis over the period of the contract term.
Revenues related to cloud hosting solutions, which include a combination of services including hosting and support services, and do not convey a license to the customer, are recognized over the period as the services are provided. These arrangements represent a single performance obligation.
Revenues related to consulting services (time-and-materials), transaction-based or volume-based contracts are recognized over the period the services are provided using an input method such as labor hours incurred. Revenues related to fixed fee consulting services are recognized as services are performed using a time elapsed measure of progress. Both time and materials and fixed fee consulting contracts have hourly rates defined based on the experience of personnel selected to perform the service. For fixed fee contracts, the fixed fee generally remains constant for the contracted project period unless the customer directs a change in scope of project work or requests additional personnel.
The Company may enter into arrangements with third party suppliers to resell products or services, such as software licenses and hosting services. In such cases, the Company evaluates whether the Company is the principal (i.e., report revenues on a gross basis) or agent (i.e., report revenues on a net basis). In doing so, the Company first evaluates whether it controls the good or service before it is transferred to the customer. In instances where the Company controls the good or service before it is transferred to the customer, the Company is the principal; otherwise, the Company is the agent. Determining whether we control the good or service before it is transferred to the customer may require judgment.
77
Some of our service arrangements are subject to customer acceptance clauses. In these instances, the Company must determine whether the customer acceptance clause is substantive. This determination depends on whether the Company can independently confirm the product meets the contractually agreed-upon specifications or if the contract requires customer review and approval. When a customer acceptance is considered substantive, the Company does not recognize revenue until customer acceptance is obtained.
Client contracts sometimes include incentive payments received for discrete benefits delivered to clients or service level agreements and volume rebates that could result in credits or refunds to the client. Such amounts are estimated at contract inception and are adjusted at the end of each reporting period as additional information becomes available only to the extent that it is probable that a significant reversal of cumulative revenue recognized will not occur.
Equity-Based Compensation
We recognize and measure compensation expense for all equity-based awards based on the grant date fair value.
For restricted stock units (“RSUs”), the Company issues awards that vest upon a service condition or market condition. Service condition awards are valued using the grant date stock price and is ratably amortized over the service period of the award. The market condition awards vest if the volume-weighted average stock price reaches the specified stock price during the specified period. The fair value of the market condition awards is determined by using a Monte Carlo simulation to model the expected amount of time to reach the specified stock price. The derived length of time is also used to amortize the total value of the awards.
For performance share units ("PSUs"), the amount recognized as an expense is adjusted to reflect the number of awards for which the related performance conditions are expected to be met, such that the amount ultimately recognized is based on the number of awards that meet the related performance conditions at the vesting date. Vesting is tied to performance conditions that include the achievement of EBITDA-based metrics and/or the occurrence of a liquidity event.
Prior to the Business Combination, the Company determined the fair value of shares by using an income approach, specifically a discounted cash flow method, and in consideration of a number of objective and subjective factors, including the Company’s actual operating and financial performance, expectations of future performance, market conditions and liquidation events, among other factors. Following the closing of the Business Combination, the grant date fair value is determined based on the fair market value of the Company’s shares on the grant date of such awards.
Prior to the Business Combination, since the Company’s shares were not publicly traded and its shares were rarely traded privately, expected volatility is estimated based on the average historical volatility of similar entities with publicly traded shares. Determining the fair value of equity-based awards requires estimates and assumptions, including estimates of the period the awards will be outstanding before they are exercised and future volatility in the price of our common shares. We periodically assess the reasonableness of our assumptions and update our estimates as required. If actual results differ significantly from our estimates, equity-based compensation expense and our results of operations could be materially affected. The Company’s accounting policy is to account for forfeitures of employee awards as they occur.
Warrants
We account for warrants as either equity-classified or liability-classified instruments based on an assessment of the warrant’s specific terms and applicable authoritative guidance in ASC 480, Distinguishing Liabilities from Equity and ASC 815, Derivatives and Hedging.
For warrants that meet all of the criteria for equity classification, the warrants are recorded as a component of additional paid-in capital at the time of issuance. For warrants that do not meet all the criteria for equity classification, the warrants are recorded as liabilities. At the end of each reporting period, changes in fair value during the period are recognized as a component of results of operations. The Company will continue to adjust the warrant liability for changes in the fair value until the earlier of a) the exercise or expiration of the warrants or b) the redemption of the warrants.
Our public warrants meet the criteria for equity classification and accordingly, are reported as a component of stockholders’ equity while our private warrants do not meet the criteria for equity classification and are thus classified as a liability.
Goodwill
78
Goodwill represents the cost of acquired businesses in excess of the fair value of identifiable tangible and intangible net assets purchased and is allocated to a reporting unit when the acquired business is integrated into the Company. Goodwill is not amortized but is tested for impairment annually on October 1st. The Company will also perform an assessment whenever events or changes in circumstances indicate that the carrying amount of a reporting unit may be more than its recoverable amount. Under FASB guidance, management may first assess certain qualitative factors to determine whether it is necessary to perform a quantitative goodwill impairment test.
When needed, the Company performs a quantitative assessment of goodwill impairment if it determines that it is more likely than not that the fair value of a reporting unit is less than its carrying amount. In the quantitative test, we compare the fair value of the reporting unit with the respective carrying value. Management uses a combined income and public company market approach to estimate the fair value of each reporting unit. If the carrying value of a reporting unit exceeds its fair value, an impairment loss is recognized in an amount equal to the excess, limited to the total amount of goodwill allocated to that reporting unit.
This analysis requires significant assumptions, such as estimated future cash flows, long-term growth rate estimates, weighted average cost of capital, and market multiples. For the Rest of the World (“ROW”) reporting unit, the analysis further applies additional estimated risk premiums related to forecast volatility and country risk to the discount rate. The estimates used to calculate the fair value of a reporting unit change from year to year based on operating results, market conditions, and other factors.
Recent Accounting Pronouncements
See Note 2, Summary of Significant Accounting Policies, to our audited consolidated financial statements included in this Annual Report on Form 10-K, for a description of recently issued accounting pronouncements that may potentially impact our financial position and results of operations.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Not applicable.
79
Item 8. Financial Statements and Supplementary Data
| Audited Consolidated Financial Statements | Page | |||||||
Report of Independent Registered Public Accounting Firm (PCAOB ID Number 185) | ||||||||
80
Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors
AgileThought, Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of AgileThought, Inc. and subsidiaries (the Company) as of December 31, 2022 and 2021, the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the years then ended, and the related notes (collectively, the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the years then ended, in conformity with U.S. generally accepted accounting principles.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ KPMG LLP
We have served as the Company’s auditor since 2019.
Dallas, Texas
March 13, 2023
81
AgileThought, Inc. Consolidated Balance Sheets | ||
| December 31, | |||||||||||
(in thousands USD, except share data) | 2022 | 2021 | |||||||||
Assets | |||||||||||
Current assets: | |||||||||||
| Cash, cash equivalents and restricted cash | $ | 8,691 | $ | 8,640 | |||||||
| Accounts receivable, net | 29,061 | 31,387 | |||||||||
Prepaid expenses and other current assets | 9,860 | 7,490 | |||||||||
Current VAT receivables | 8,228 | 9,713 | |||||||||
Total current assets | 55,840 | 57,230 | |||||||||
Property and equipment, net | 3,244 | 3,107 | |||||||||
Goodwill and indefinite-lived intangible assets | 87,661 | 86,694 | |||||||||
Finite-lived intangible assets, net | 61,355 | 66,233 | |||||||||
Operating lease right of use assets, net | 6,462 | 6,434 | |||||||||
Other noncurrent assets | 677 | 1,612 | |||||||||
Total noncurrent assets | 159,399 | 164,080 | |||||||||
Total assets | $ | 215,239 | $ | 221,310 | |||||||
Liabilities and Stockholders’ Equity | |||||||||||
Current liabilities: | |||||||||||
Accounts payable | $ | 11,427 | $ | 20,970 | |||||||
Accrued liabilities | 9,114 | 9,778 | |||||||||
Income taxes payable | 226 | 97 | |||||||||
Other taxes payable | 10,665 | 9,733 | |||||||||
Current portion of operating lease liabilities | 2,092 | 2,834 | |||||||||
Deferred revenue | 2,151 | 1,789 | |||||||||
| Purchase price obligation note payable | 10,243 | 8,791 | |||||||||
| Current portion of long-term debt and financing obligations | 37,194 | 14,838 | |||||||||
| Embedded derivative liabilities | 7 | — | |||||||||
| Other current liabilities | 3,452 | — | |||||||||
Total current liabilities | 86,571 | 68,830 | |||||||||
| Long-term debt and financing obligations, net of current portion | 39,395 | 42,274 | |||||||||
Deferred tax liabilities, net | 3,627 | 2,762 | |||||||||
Operating lease liabilities, net of current portion | 3,470 | 3,759 | |||||||||
| Warrant liability | 2,306 | 2,137 | |||||||||
Other noncurrent liabilities | — | 6,900 | |||||||||
Total liabilities | 135,369 | 126,662 | |||||||||
Stockholders’ Equity | |||||||||||
Class A shares $.0001 par value, 210,000,000 shares authorized, 48,402,534 and 50,402,763 shares issued as of December 31, 2022 and 2021, respectively | 5 | 5 | |||||||||
Treasury stock, 2,423,204 and 181,381 shares at cost as of December 31, 2022 and 2021 respectively | — | (294) | |||||||||
Additional paid-in capital | 204,126 | 198,649 | |||||||||
Accumulated deficit | (106,431) | (86,251) | |||||||||
Accumulated other comprehensive loss | (17,776) | (17,362) | |||||||||
Total stockholders’ equity attributable to the Company | 79,924 | 94,747 | |||||||||
Noncontrolling interests | (54) | (99) | |||||||||
Total stockholders’ equity | 79,870 | 94,648 | |||||||||
Total liabilities and stockholders’ equity | $ | 215,239 | $ | 221,310 | |||||||
The accompanying notes are an integral part of the Consolidated Financial Statements.
82
AgileThought, Inc. Consolidated Statements of Operations | ||
Year ended December 31, | |||||||||||
| (in thousands USD, except share data) | 2022 | 2021 | |||||||||
| Net revenues | $ | 176,846 | $ | 158,668 | |||||||
| Cost of revenue | 119,159 | 112,303 | |||||||||
| Gross profit | 57,687 | 46,365 | |||||||||
| Operating expenses: | |||||||||||
| Selling, general and administrative expenses | 45,786 | 43,551 | |||||||||
| Depreciation and amortization | 7,025 | 6,984 | |||||||||
| Change in fair value of purchase price obligation | — | (2,200) | |||||||||
| Change in fair value of embedded derivative liabilities | (3,337) | (4,406) | |||||||||
| Change in fair value of warrant liability | 169 | (4,694) | |||||||||
| Loss on debt extinguishment | 9,734 | — | |||||||||
| Equity-based compensation expense | 5,771 | 6,481 | |||||||||
| Restructuring expenses | 1,804 | 911 | |||||||||
| Other operating expenses, net | 3,662 | 1,785 | |||||||||
| Total operating expense | 70,614 | 48,412 | |||||||||
| Loss from operations | (12,927) | (2,047) | |||||||||
| Interest expense | (12,890) | (16,457) | |||||||||
| Other income (expense), net | 7,143 | (1,084) | |||||||||
| Loss before income tax | (18,674) | (19,588) | |||||||||
| Income tax expense | 1,454 | 460 | |||||||||
| Net loss | (20,128) | (20,048) | |||||||||
| Net income attributable to noncontrolling interests | 52 | 22 | |||||||||
| Net loss attributable to the Company | $ | (20,180) | $ | (20,070) | |||||||
| Basic | $ | (0.44) | $ | (0.54) | |||||||
Diluted | $ | (0.44) | $ | (0.54) | |||||||
| Weighted average number of shares: | |||||||||||
Basic | 46,127,083 | 37,331,820 | |||||||||
Diluted | 46,127,083 | 37,331,820 | |||||||||
The accompanying notes are an integral part of the Consolidated Financial Statements.
83
AgileThought, Inc. Consolidated Statements of Comprehensive Loss | ||
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Net loss | $ | (20,128) | $ | (20,048) | |||||||
| Actuarial loss | 4 | 62 | |||||||||
| Foreign currency translation adjustments | (425) | (427) | |||||||||
| Comprehensive loss | (20,549) | (20,413) | |||||||||
Less: Comprehensive income attributable to noncontrolling interests | 45 | 38 | |||||||||
| Comprehensive loss attributable to the Company | $ | (20,594) | $ | (20,451) | |||||||
The accompanying notes are an integral part of the Consolidated Financial Statements.
84
AgileThought, Inc. Consolidated Statements of Stockholders' Equity | ||
| Common Stock | Treasury Stock | Additional Paid-in Capital | Accumulated Deficit | Accumulated Other Comprehensive Loss | Noncontrolling Interests | Total Stockholders' Equity | ||||||||||||||||||||||||||||||||||||||||||||||||||
| (in thousands USD, except share data) | Shares | Amount | Shares | Amount | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| December 31, 2020 | 34,557,480 | 3 | 151,950 | — | 101,494 | (66,181) | (16,981) | (137) | 18,198 | |||||||||||||||||||||||||||||||||||||||||||||||
| Net (loss) income | — | — | — | — | — | (20,070) | — | 22 | (20,048) | |||||||||||||||||||||||||||||||||||||||||||||||
Issuance of common stock in offering, net of transaction cost of $3.1 million | 3,560,710 | — | — | — | 21,819 | — | — | — | 21,819 | |||||||||||||||||||||||||||||||||||||||||||||||
| Conversion of convertible debt to common stock | 461,236 | — | — | — | 4,700 | — | — | — | 4,700 | |||||||||||||||||||||||||||||||||||||||||||||||
Issuance of common stock due to closing of Business Combination, net of transaction costs of $13.0 million | 7,413,435 | 1 | — | — | 65,840 | — | — | — | 65,841 | |||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock to First Lien Facility administrative agent | 4,439,333 | 1 | — | — | (1) | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||
| Equity-based compensation | — | — | — | — | 6,481 | — | — | — | 6,481 | |||||||||||||||||||||||||||||||||||||||||||||||
| Employee withholding taxes paid related to net share settlements | (29,431) | — | 29,431 | (294) | (1,684) | — | — | — | (1,978) | |||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive expense | — | — | — | — | — | — | 62 | — | 62 | |||||||||||||||||||||||||||||||||||||||||||||||
| Foreign currency translation adjustments | — | — | — | — | — | — | (443) | 16 | (427) | |||||||||||||||||||||||||||||||||||||||||||||||
| December 31, 2021 | 50,402,763 | 5 | 181,381 | (294) | 198,649 | (86,251) | (17,362) | (99) | 94,648 | |||||||||||||||||||||||||||||||||||||||||||||||
| Net (loss) income | — | — | — | — | — | (20,180) | — | 52 | (20,128) | |||||||||||||||||||||||||||||||||||||||||||||||
| Redemption of public warrants | 20 | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||
| First Lien Facility administrative agent | (2,423,204) | — | 2,423,204 | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||
| Retirement of treasury stock | — | — | (252,084) | 655 | (655) | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||||
| Equity-based compensation | 493,658 | — | — | — | 5,771 | — | — | — | 5,771 | |||||||||||||||||||||||||||||||||||||||||||||||
| Employee withholding taxes paid related to net share settlements | (70,703) | — | 70,703 | (361) | 361 | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive expense | — | — | — | — | — | — | 4 | — | 4 | |||||||||||||||||||||||||||||||||||||||||||||||
| Foreign currency translation adjustments | — | — | — | — | — | — | (418) | (7) | (425) | |||||||||||||||||||||||||||||||||||||||||||||||
| December 31, 2022 | 48,402,534 | 5 | 2,423,204 | — | 204,126 | (106,431) | (17,776) | (54) | 79,870 | |||||||||||||||||||||||||||||||||||||||||||||||
The accompanying notes are an integral part of the Consolidated Financial Statements
85
AgileThought, Inc. Consolidated Statements of Cash Flows | ||
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Operating Activities | |||||||||||
| Net loss | $ | (20,128) | $ | (20,048) | |||||||
Adjustments to reconcile net loss to net cash used in operating activities: | |||||||||||
| Accretion of interest from convertible notes | 2,637 | 3,068 | |||||||||
| Gain on forgiveness of debt | (7,280) | (1,306) | |||||||||
| Loss on debt extinguishment | 9,734 | — | |||||||||
| (Benefit) provision for bad debt expense | (28) | 1,307 | |||||||||
| Equity-based compensation expense | 5,771 | 6,481 | |||||||||
| Right-of-use asset amortization | 3,003 | 3,125 | |||||||||
| Foreign currency remeasurement | (593) | 1,936 | |||||||||
| Deferred income tax provision (benefit) | 735 | (242) | |||||||||
Change in obligations for purchase price | 878 | (1,464) | |||||||||
| Change in fair value of embedded derivative liabilities | (3,337) | (4,406) | |||||||||
| Change in fair value of warrant liability | 169 | (4,694) | |||||||||
| Amortization of debt issuance costs | 3,030 | 3,521 | |||||||||
| Depreciation and amortization | 7,025 | 6,984 | |||||||||
| Changes in assets and liabilities: | |||||||||||
| Accounts receivable | 3,184 | (10,253) | |||||||||
| Prepaid expenses, other current assets, and other noncurrent assets | (699) | (4,729) | |||||||||
| Accounts payable | (10,056) | 3,657 | |||||||||
| Accrued and other current liabilities | (1,149) | (5,079) | |||||||||
| Deferred revenues | 151 | (271) | |||||||||
| Current VAT receivables and other taxes payable | 2,566 | 2,356 | |||||||||
| Income taxes payable | 92 | (29) | |||||||||
| Operating lease liabilities | (3,997) | (3,137) | |||||||||
| Net cash used in operating activities | (8,292) | (23,223) | |||||||||
| Investing activities | |||||||||||
| Purchase of property and equipment | (1,018) | (916) | |||||||||
| Net cash used in investing activities | (1,018) | (916) | |||||||||
| Financing activities | |||||||||||
| Proceeds from loans | 58,000 | 24,524 | |||||||||
| Payments of debt issuance costs | (10,128) | (1,453) | |||||||||
| Repayments of borrowings | (37,719) | (61,655) | |||||||||
| Cash paid for shares withheld from a grantee to satisfy tax withholding | (523) | — | |||||||||
| Payments for finance leases | (145) | — | |||||||||
| Payments of PIPE transaction cost | — | (13,033) | |||||||||
| Proceeds from PIPE Investors | — | 27,600 | |||||||||
| Proceeds from follow-on public offering | — | 24,925 | |||||||||
| Share issuance transaction costs | — | (3,106) | |||||||||
| Proceeds from capital contribution | — | 25,749 | |||||||||
| Net cash provided by financing activities | 9,485 | 23,551 | |||||||||
| Effect of exchange rates on cash | (124) | (204) | |||||||||
| Increase (decrease) in cash and cash equivalents | 51 | (792) | |||||||||
Cash, cash equivalents and restricted cash at beginning of the year | 8,640 | 9,432 | |||||||||
Cash, cash equivalents and restricted cash at end of the year (1) | $ | 8,691 | $ | 8,640 | |||||||
(1) Amount of restricted cash at end of period | $ | 213 | $ | 177 | |||||||
The accompanying notes are an integral part of the Consolidated Financial Statements
86
AgileThought, Inc. Notes to Consolidated Financial Statements | ||
Note 1 – Organization and Basis of Consolidation and Presentation
Organization
AgileThought, Inc. (the “Company” or “AgileThought”) is a global provider of agile-first, end-to-end digital transformation services in the North American market using on-shore and near-shore delivery. The Company’s headquarters is in Irving, Texas. AgileThought’s common stock is listed on the NASDAQ Capital Market (“NASDAQ”) under the symbol “AGIL.”
On August 23, 2021 (the “Closing Date”), LIV Capital Acquisition Corp. (“LIVK”), a special purpose acquisition company, and AgileThought (“Legacy AgileThought”) consummated the transactions contemplated by the definitive agreement and plan of merger (“Merger Agreement”), dated May 9, 2021 (“Business Combination”). Pursuant to the terms, Legacy AgileThought merged with and into LIVK, whereupon the separate corporate existence of Legacy AgileThought ceased, with LIVK surviving such merger (the “Surviving Company”). On the Closing Date, the Surviving Company changed its name to AgileThought, Inc. (the “Company”, “AgileThought”, “we” or “us”).
Basis of Consolidation and Presentation
The accompany consolidated financial statements are prepared in accordance with the U.S generally accepted accounting principles (“GAAP”) and in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC.”) The consolidated financial statements included in this Annual Report present the Company’s financial position, results of operations and cash flows for the periods of the Company and its subsidiaries. All intercompany accounts and transactions have been eliminated. The ownership interest of noncontrolling investors of the Company’s subsidiaries are recorded as noncontrolling interest.
The Business Combination was accounted for as a reverse capitalization in accordance with U.S. GAAP (the “Recapitalization”). Under this method of accounting, LIVK is treated as the acquired company and Legacy AgileThought is treated as the accounting acquirer for financial reporting purposes, resulting in no change in the carrying amount of the Company's assets and liabilities. The consolidated assets, liabilities and results of operations prior to the Recapitalization are those of Legacy AgileThought. The shares and corresponding capital amounts and losses per share, prior to the Business Combination, have been retroactively restated based on shares reflecting the exchange ratio established in the Business Combination.
The Company evaluated subsequent events, if any, that would require an adjustment to the Company’s consolidated financial statements or require disclosure in the notes to the consolidated financial statements through the date of issuance of the consolidated financial statements. Where applicable, the notes to these consolidated financial statements have been updated to discuss all significant subsequent events which have occurred.
87
Note 2 – Summary of Significant Accounting Policies
Use of Estimates
The preparation of financial statements in accordance with U.S. GAAP requires management to make estimates and assumptions about future events that affect the amounts reported in the Consolidated Financial Statements. We make significant estimates with respect to intangible assets, goodwill, depreciation, amortization, income taxes, equity-based compensation, contingencies, fair value of assets and liabilities acquired, obligations related to contingent consideration in connection with business combinations, fair value of embedded derivative liabilities, and fair value of warrant liability. To the extent the actual results differ materially from these estimates and assumptions, the Company’s future financial statements could be materially affected.
Revenue Recognition
The Company recognizes revenue in accordance with Financial Accounting Standards Board’s (“FASB”) Accounting Standards Codification (“ASC”) 606, Revenue from Contracts with Customers.
Revenue is recognized when or as control of promised products or services are transferred to the customer in an amount that reflects the consideration the Company expects to receive in exchange for those products or services. In instances where revenue is recognized over time, the Company uses an appropriate input or output measurement method, typically based on the contract or labor volume.
The Company applies judgment in determining the customer’s ability and intention to pay based on a variety of factors, including the customer’s historical payment experience. If there is uncertainty about the receipt of payment for the services, revenue recognition is deferred until the uncertainty is sufficiently resolved. Our payment terms are based on customary business practices and can vary by region and customer type, but are generally 30-90 days. Since the term between the satisfaction of the performance obligation and payment receipt is less than a year, we do not adjust the transaction price for the effects of a financing component.
The Company may enter into arrangements that consist of any combination of our deliverables. To the extent a contract includes multiple promised deliverables, the Company determines whether promised deliverables are distinct in the context of the contract. If these criteria are not met, the promised deliverables are accounted for as a single performance obligation. For arrangements with multiple distinct performance obligations, we allocate consideration among the performance obligations based on their relative standalone selling price. The standalone selling price is the price at which we would sell a promised good or service on an individual basis to a customer. When not directly observable, the Company generally estimates standalone selling price by using the expected cost plus a margin approach. The Company reassesses these estimates on a periodic basis or when facts and circumstances change.
Revenues related to software maintenance services are recognized over the period the services are provided using an output method that is consistent with the way in which value is delivered to the customer, generally straight lined on a monthly basis over the period of the contract term.
Revenues related to cloud hosting solutions, which include a combination of services including hosting and support services, and do not convey a license to the customer, are recognized over the period as the services are provided. These arrangements represent a single performance obligation.
Revenues related to consulting services (time-and-materials), transaction-based or volume-based contracts are recognized over the period the services are provided using an input method such as labor hours incurred. Revenues related to fixed fee consulting services are recognized as services are performed using a time elapsed measure of progress. Both time and materials and fixed fee consulting contracts have hourly rates defined based on the experience of personnel selected to perform the service. For fixed fee contracts, the fixed fee generally remains constant for the contracted project period unless the customer directs a change in scope of project work or requests additional personnel.
The Company may enter into arrangements with third party suppliers to resell products or services, such as software licenses and hosting services. In such cases, the Company evaluates whether the Company is the principal (i.e., report revenues on a gross basis) or agent (i.e., report revenues on a net basis). In doing so, the Company first evaluates whether it controls the good or service before it is transferred to the customer. In instances where the Company controls the good or service before it is transferred to the customer, the Company is the principal; otherwise, the Company is the agent. Determining whether we control the good or service before it is transferred to the customer may require judgment.
88
Some of our service arrangements are subject to customer acceptance clauses. In these instances, the Company must determine whether the customer acceptance clause is substantive. This determination depends on whether the Company can independently confirm the product meets the contractually agreed-upon specifications or if the contract requires customer review and approval. When a customer acceptance is considered substantive, the Company does not recognize revenue until customer acceptance is obtained.
Client contracts sometimes include incentive payments received for discrete benefits delivered to clients or service level agreements and volume rebates that could result in credits or refunds to the client. Such amounts are estimated at contract inception and are adjusted at the end of each reporting period as additional information becomes available only to the extent that it is probable that a significant reversal of cumulative revenue recognized will not occur.
Segments
Operating segments are defined as components of an enterprise for which discrete financial information is available that is evaluated regularly by the Chief Operating Decision Maker (“CODM”) for purposes of allocating resources and evaluating financial performance. The Company’s Chief Executive Officer, who has been identified as the CODM, reviews financial information at the consolidated group level in order to assess Company performance and allocate resources. As such, the Company has determined that it operates a single operating and reporting segment.
Fair Value Measurements
The Company records fair value of assets and liabilities in accordance with FASB ASC 820, Fair Value Measurement. ASC 820 defines fair value as the price received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date and in the principal or most advantageous market for that asset or liability. The fair value should be calculated based on assumptions that market participants would use in pricing the asset or liability, not on assumptions specific to the entity.
ASC 820 includes disclosures around fair value and establishes a fair value hierarchy for valuation inputs. The hierarchy prioritizes the inputs into three levels based on the extent to which inputs used in measuring fair value are observable in the market. Each fair value measurement is reporting in one of three levels, which is determined by the lowest level input that is significant to the fair value measurement in its entirety. These levels are as follows:
Level 1: Quoted prices for identical instruments in active markets.
Level 2: Other valuations that include quoted prices for similar instruments in active markets that are directly or indirectly observable.
Level 3: Valuations made through techniques in which one or more of its significant data are not observable.
Cash, Cash Equivalents and Restricted Cash
Cash equivalents include highly liquid investments with an original maturity of three months or less when purchased. The Company maintains cash and cash equivalents balances with major financial institutions. At times, these balances exceed federally insured limits. The Company periodically assesses the financial condition of these financial institutions where the funds are held and believes the credit risk is remote. In 2022 and 2021, the Company held restricted cash in connection with litigation.
Accounts Receivable and Allowance for Doubtful Accounts
Accounts receivable are recorded at the invoiced or to be invoiced amount, do not bear interest, and are due within one year or less. The Company maintains an allowance for doubtful accounts for estimated credit losses inherent in its accounts receivable portfolio consistent with the requirements of FASB ASC 326, Measurement of Credit Losses of Financial Instruments (“ASC, 326”). In establishing the required reserve, management considers historical experience, the age of the accounts receivable balances and current payment patterns, and current economic conditions that may affect a client's ability to pay. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. The Company does not have any off-balance-sheet credit exposure related to its clients.
89
Property and Equipment
Property and equipment are measured at cost less accumulated depreciation or amortization. Expenditures for replacements and improvements are capitalized, whereas the costs of maintenance and repairs are charged to earnings as incurred. The Company depreciates property and equipment using the straight-line method over the following estimated economic useful lives of the assets:
| Useful life (years) | |||||
| Furniture and fixtures | 5 - 10 | ||||
| Computer equipment | 3 - 5 | ||||
| Computer software | 3 | ||||
Leasehold improvements are amortized over the lease term or the useful life of the asset, whichever is shorter. When these assets are sold or otherwise disposed of, the asset and related depreciation and amortization is relieved, and any gain or loss is included in the Consolidated Statements of Operations.
The Company capitalizes certain development costs incurred in connection with its internal-use software. Costs incurred in the preliminary stages of development are expensed as incurred. Once an application has reached the development stage, payroll and payroll-related expenses of employees, are capitalized until the software is substantially complete and ready for its intended use. Capitalized costs are amortized on a straight-line basis over three years, the estimated useful life of the software.
Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable. We test for recoverability by comparing the sum of estimated future discounted cash flows to an asset’s carrying value. If we determine the carrying value is not recoverable, we calculate an impairment loss based on the excess of the asset’s carrying value over its fair value. The fair value is determined using a discounted cash flow approach.
Business Combinations
The Company accounts for its business combinations using the acquisition method of accounting in accordance with ASC 805, Business Combinations, by recognizing the identifiable tangible and intangible assets acquired and liabilities assumed, and any non-controlling interest in the acquired business, measured at their acquisition date fair values. Contingent consideration is included within the acquisition cost and is recognized at its fair value on the acquisition date. A liability resulting from contingent consideration is re-measured to fair value as of each reporting date until the contingency is resolved, and subsequent changes in fair value are recognized in earnings. Acquisition-related costs are expensed as incurred within Other operating expenses, net in the Consolidated Statement of Operations.
Goodwill
Goodwill represents the cost of acquired businesses in excess of the fair value of identifiable tangible and intangible net assets purchased and is allocated to a reporting unit when the acquired business is integrated into the Company. Goodwill is not amortized but is tested for impairment annually on October 1st. The Company will also perform an assessment whenever events or changes in circumstances indicate that the carrying amount of a reporting unit may be more than its recoverable amount. Under FASB guidance, management may first assess certain qualitative factors to determine whether it is necessary to perform a quantitative goodwill impairment test.
When needed, the Company performs a quantitative assessment of goodwill impairment if it determines that it is more likely than not that the fair value of a reporting unit is less than its carrying amount. In the quantitative test, we compare the fair value of the reporting unit with the respective carrying value. Management uses a combined income and public company market approach to estimate the fair value of each reporting unit. If the carrying value of a reporting unit exceeds its fair value, an impairment loss is recognized in an amount equal to the excess, limited to the total amount of goodwill allocated to that reporting unit.
This analysis requires significant assumptions, such as estimated future cash flows, long-term growth rate estimates, weighted average cost of capital, and market multiples. For the Rest of the World (“ROW”) reporting unit, the analysis further applies additional estimated risk premiums related to forecast volatility and country risk to the discount rate. The estimates used to calculate the fair value of a reporting unit change from year to year based on operating results, market conditions, and other factors.
90
Intangible Assets
The Company has customer relationships (finite-lived intangible assets) and trade names (indefinite-lived intangible assets) on its Consolidated Balance Sheets.
Intangible assets with finite lives are amortized on a straight-line basis over their estimated useful lives using a method of amortization that reflects the pattern in which the economic benefits of the intangible assets are consumed. We test for impairment when events or circumstances indicate the carrying value of a finite-lived intangible asset may not be recoverable. Consistent with other long-lived assets, if the carrying value is not determined to be recoverable, we calculate an impairment loss based on the excess of the asset’s carrying value over its fair value. The fair value is determined using the discounted cash flow approach of multi-period excess earnings.
During the first quarter of 2021, the Company reassessed and changed the estimated economic life of a certain trade name from indefinite to finite-lived as a result of the shift in operations towards a global strategy as “One AgileThought.” As a result, the Company began amortizing a certain trade name using straight-line method over their average remaining economic life of five years.
Indefinite-lived intangible assets are not amortized but are instead assessed for impairment annually and as needed whenever events or circumstances leads to a determination that it is more likely than not that the fair value of a reporting unit is less than its carrying amount. An impairment loss is recognized if the asset’s carrying value exceeds its fair value. The Company uses the relief from royalty method to determine the fair value of its indefinite-lived intangible assets. Refer to Note 7, Goodwill and Intangible Assets, for additional information.
Leases
The Company is a lessee in several non-cancellable leases, primarily for office space, IT computer equipment, and furniture. The Company accounts for leases under ASC Topic 842, Leases. We determine if an arrangement is or contains a lease at inception. For both operating and finance leases, the lease liability is initially measured at the present value of future lease payments at the lease commencement date. Lease payments included in the measurement of the lease liability are comprised of the following:
◦Fixed payments, including in-substance fixed payments, owed over the lease term;
◦Variable lease payments that depend on an index or rate, initially measured using the index or rate at the lease commencement date;
◦Amounts expected to be payable under a Company-provided residual value guarantee; and
◦The exercise price of a Company option to purchase the underlying asset if the Company is reasonably certain to exercise the option.
Key estimates and judgments include how the Company determines (1) the discount rate it uses to calculate the present value of future lease payments and (2) lease term. These are described in more detail as follows:
•ASC 842 requires a lessee to calculate its lease liability using the interest rate implicit in the lease or, if that rate cannot be readily determined, its incremental borrowing rate. Generally, the Company cannot determine the interest rate implicit in the lease because it does not have access to the lessor’s estimated residual value or the amount of the lessor’s deferred initial direct costs. Therefore, the Company generally uses its incremental borrowing rate as the discount rate for the lease. This is the rate the Company would have to pay on a collateralized basis to borrow an amount equal to the lease payments under similar terms.
•The lease term for all of the Company’s leases includes the non-cancellable period of the lease plus any periods covered by a Company option to extend (or not to terminate) the lease that the Company is reasonably certain to exercise, or an option to extend (or not to terminate) the lease controlled by the lessor.
The right of use (“ROU”) asset is initially measured at the initial amount of the lease liability, adjusted for lease payments made at or before the lease commencement date, plus any initial direct costs incurred less any lease incentives received. The ROU asset is subsequently amortized over the lease term. Lease expense for lease payments is recognized on a straight-line basis over the lease term in selling, general and administrative expenses in the Consolidated Statements of Operations.
91
Variable lease payments are immaterial and our lease agreements do not contain any material residual value guarantees or material restrictive covenants.
The Company uses the long-lived assets impairment guidance in ASC Subtopic 360-10, Property, Plant, and Equipment – Overall, to determine whether an ROU asset is impaired, and if so, the amount of the impairment loss to recognize.
The Company has elected to apply the short-term lease recognition and measurement exemption and not recognize ROU assets and lease liabilities for leases with a lease term of 12 months or less. The Company recognizes the lease payments associated with its short-term leases as an expense on a straight-line basis over the lease term. Variable lease payments associated with these leases are recognized and presented in the same manner as for all other Company leases.
We have lease agreements with lease and non-lease components, for which we have elected the practical expedient to account for as a single lease component. Additionally, for certain equipment leases, we apply a portfolio approach to effectively account for the operating lease ROU assets and operating lease liabilities. Refer to Note 8, Leases, for additional information.
Foreign Currency
The Company’s Consolidated Financial Statements are reported in US dollars. The Company has determined that its international subsidiaries’ functional currency is the local currency in each country. The translation of the functional currencies of subsidiaries into US dollars is performed for balance sheet accounts using the exchange rates in effect as of the balance sheet date and for revenues and expense accounts using a monthly average exchange rate prevailing during the respective period. The gains or losses resulting from such translation are reported as foreign currency translation adjustments within accumulated other comprehensive income (loss) as a separate component of equity.
Monetary assets and liabilities of each subsidiary denominated in currencies other than the subsidiary’s functional currency are translated into their respective functional currency at the rates of exchange prevailing on the balance sheet date. Transactions of each subsidiary in currencies other than the subsidiary’s functional currency are translated into the respective functional currencies at the average monthly exchange rate prevailing during the period of the transaction. The gains or losses resulting from foreign currency transactions are included in the Consolidated Statements of Operations.
Income Taxes
The Company accounts for income taxes using the asset and liability method of accounting for income taxes. Under this method, income tax expense is recognized for taxes payable or refundable for the current year. In addition, deferred tax assets and liabilities are recognized for future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their tax bases and all operating loss and tax credit carry forwards, if any. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax laws or rates is recognized in the Consolidated Statements of Operations in the period that includes the enactment date. Deferred tax assets are reduced by a valuation allowance if, based on the weight of available evidence, it is more likely than not that some or all the deferred tax assets will not be realized. Pursuant to FASB guidance related to accounting for uncertainty in income taxes, we may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained upon examination by the taxing authorities, based on the technical merits of the tax position and also the past administrative practices and precedents of the taxing authority.
Equity-based Compensation
We recognize and measure compensation expense for all equity-based awards based on the grant date fair value.
For restricted stock units (“RSUs”), the Company issues awards that vest upon a service condition or market condition. Service condition awards are valued using the grant date stock price and is ratably amortized over the service period of the award. The market condition awards vest if the volume-weighted average stock price reaches the specified stock price during the specified period. The fair value of the market condition awards is determined by using a Monte Carlo simulation to model the expected amount of time to reach the specified stock price. The derived length of time is also used to amortize the total value of the awards. Refer to Note 18, Equity-based Arrangements, for additional information.
92
For performance share units ("PSUs"), the amount recognized as an expense is adjusted to reflect the number of awards for which the related performance conditions are expected to be met, such that the amount ultimately recognized is based on the number of awards that meet the related performance conditions at the vesting date. Vesting is tied to performance conditions that include the achievement of EBITDA-based metrics and/or the occurrence of a liquidity event.
Prior to the Business Combination, the Company determined the fair value of shares by using an income approach, specifically a discounted cash flow method, and in consideration of a number of objective and subjective factors, including the Company’s actual operating and financial performance, expectations of future performance, market conditions and liquidation events, among other factors. Following the closing of the Business Combination, the grant date fair value is determined based on the fair market value of the Company’s shares on the grant date of such awards.
Prior to the Business Combination, since the Company’s shares were not publicly traded and its shares were rarely traded privately, expected volatility was estimated based on the average historical volatility of similar entities with publicly traded shares. Determining the fair value of equity-based awards requires estimates and assumptions, including estimates of the period the awards will be outstanding before they are exercised and future volatility in the price of our common shares. We periodically assess the reasonableness of our assumptions and update our estimates as required. If actual results differ significantly from our estimates, equity-based compensation expense and our results of operations could be materially affected. The Company’s accounting policy is to account for forfeitures of employee awards as they occur.
Defined Contribution Plan
The Company maintains a 401(k) savings plan covering all U.S. employees. Participating employees may contribute a portion of their salary into the savings plan, subject to certain limitations. The Company matches 100% of the first 4% of each employee's contributions and 50% of the next 1% of the employee's base compensation contributed, with a maximum contribution of $6,000 per employee. For the fiscal years ended December 31, 2022 and 2021, the Company's matching contributions totaled $1.0 million and $1.3 million, respectively, and were expensed as incurred.
Earnings (Loss) Per Share
Basic and diluted earnings (loss) per share attributable to common stockholders is presented in conformity with the two-class method required for participating securities. Class A common shares have identical liquidation and distribution rights. The net earnings (loss) is allocated on a proportionate basis to Class A. Basic net earnings (loss) per share attributable to common stockholders is computed by dividing the net earnings (loss) by the weighted-average number of shares of common stock outstanding during the period. The diluted net loss per share attributable to common stockholders is computed by giving effect to all potential dilutive common stock equivalents outstanding for the period using the if-converted or treasury stock method, as applicable. For purpose of this calculation, the convertible notes, contingent consideration payable in shares, and outstanding stock awards are considered and included in the computation of diluted earnings (loss) per share, except for where the result would be anti-dilutive or the required conditions for issuance of common shares have not been met as of the balance sheet date. Diluted earnings (loss) per share is computed using the weighted average number of common and dilutive common equivalent shares outstanding during the period.
Commitments and Contingencies
Liabilities for loss contingencies arising from claims, assessments, litigation, fines and penalties, and other sources are recorded when it is probable that a liability has been incurred and the amount of the assessment and/or remediation can be reasonably estimated. Legal costs incurred in connection with such liabilities are expensed as incurred.
Embedded Derivative Liabilities
The Company does not use derivative instruments to hedge exposures to interest rate, market, or foreign currency risks. The Company has evaluated the terms and features of its redeemable convertible preferred stock issued in February 2021 and identified two embedded derivatives requiring bifurcation from the underlying host instrument pursuant to ASC 815-15, Embedded Derivatives. In connection with the consummation of the Business Combination that occurred on August 23, 2021, the preferred stock was converted into common stock of the Company and these embedded derivative ceased to exist.
The Company also identified three embedded derivatives as part of the modification of the Second Lien Facility in August 2022 and November 2022 related to the conversion option on the Mexican peso-denominated loans. The identified
93
embedded derivatives met the criteria for bifurcation due to the instruments containing conversion options that are not clearly and closely related to the host instrument.
Embedded derivatives are bifurcated from the underlying host instrument and accounted for as separate financial instruments. Embedded derivatives are recognized at fair value, with changes in fair value during the period are recognized in "Change in fair value of embedded derivative liabilities" in the Consolidated Statements of Operations. Refer to Note 4, Fair Value Measurements, for additional information.
Warrants
The Company accounts for warrants as either equity-classified or liability-classified instruments based on an assessment of the warrant’s specific terms and applicable authoritative guidance in FASB ASC 480, Distinguishing Liabilities from Equity (“ASC 480”) and ASC 815, Derivatives and Hedging (“ASC 815”).
For warrants that meet all of the criteria for equity classification, the warrants are recorded as a component of additional paid-in capital at the time of issuance. For warrants that do not meet all the criteria for equity classification, the warrants are recorded as liabilities. At the end of each reporting period, changes in fair value during the period are recognized in “Change in fair value of warrant liability” in the Company’s Consolidated Statements of Operations. The Company will continue to adjust the warrant liability for changes in the fair value until the earlier of a) the exercise or expiration of the warrants or b) the redemption of the warrants.
Our public warrants meet the criteria for equity classification and accordingly, are reported as a component of stockholders’ equity while our private warrants do not meet the criteria for equity classification and are thus classified as a liability.
Government Assistance
The Company recognizes grants and other support from the government in accordance with FASB ASC 832, Government Assistance (“ASC 832”). The grants are recorded when there is reasonable assurance the conditions of the subsidies will be met and the subsidies will be received.
In March 2020, the U.S. government passed the CARES act to provide relief to businesses during the COVID-19 pandemic. Within the relief program, the government introduced the Employee Retention Credit which provides government assistance for businesses that continued to pay employees while shut down due to the COVID-19 pandemic or had significant declines in gross receipts from March 13, 2020 to December 31, 2021. The Company qualified for a $4.8 million refundable tax credit for the year ended December 31, 2022. This tax credit relates to qualifying costs incurred in the previous years. This tax credit is recognized as a reduction to Selling, General, and Administrative expenses on the Consolidated Statements of Operations and recorded as an asset in on the Consolidated Balance Sheets.
Accounting Pronouncements
The authoritative bodies release standards and guidance, which are assessed by management for impact on the Company’s Consolidated Financial Statements. Accounting Standards Updates (“ASUs”) not listed below were assessed and determined to be not applicable to the Company’s Consolidated Financial Statements.
The following standards were recently adopted by the Company:
•In May 2021, the FASB issued ASU 2021-04, Earnings Per Share, Debt-Modifications and Extinguishments, Compensation-Stock Compensation, and Derivatives and Hedging-Contracts in Entity’s Own Equity. This ASU reduces diversity in an issuer’s accounting for modifications or exchanges of freestanding equity-classified written call options (for example, warrants) that remain equity classified after modification or exchange. This ASU is effective for fiscal years beginning after December 15, 2021 on a prospective basis. Early adoption is permitted for all entities, including adoption in an interim period. The ASU was adopted by the Company on January 1, 2022, resulting in no material impact to the Unaudited Condensed Consolidated Financial Statements.
•In October 2021, the FASB issued ASU 2021-08, Business Combinations: Accounting for Contract Asset and Contract Liabilities from Contracts with Customers. This ASU requires an entity to recognize and measure contract assets and liabilities acquired in a business combination in accordance with ASU 2014-09, Revenue from Contracts with Customers. This ASU is expected to reduce diversity in practice and increase comparability for
94
both the recognition and measurement of acquired revenue contracts with customers at the date of and after a business combination. This standard is effective for annual periods beginning after December 15, 2022, including interim periods therein, with early adoption permitted. The ASU was adopted by the Company on January 1, 2022, resulting in no material impact to the Unaudited Condensed Consolidated Financial Statements.
•In November 2021, the FASB issued ASU 2021-10, Government Assistance (ASC 832). This ASU increases transparency of government assistance including the disclosure of (1) the types of assistance, (2) an entity’s accounting for the assistance, and (3) the effect of the assistance on an entity’s financial statements. This ASU is expected to reduce diversity in the recognition, measurement, presentation, and disclosure of government assistance received by business entities because of the lack of specific authoritative guidance. This standard is effective for annual periods beginning after December 15, 2021, including interim periods therein, with early adoption permitted. The ASU was adopted by the Company on January 1, 2022, resulting in the disclosure of the Employee Retention Tax Credit as previously mentioned.
Note 3 – Business Combination
As discussed in Note 1, Organization and Basis of Consolidation and Presentation, the Company consummated the Business Combination on August 23, 2021, pursuant to the Merger Agreement dated May 9, 2021. In connection with the Business Combination, the following occurred:
• On August 20, 2021, LIVK changed jurisdiction of incorporation from the Cayman Islands to the State of Delaware by deregistering as an exempted company in the Cayman Islands and domesticating and continuing as a corporation formed under the laws of the State of Delaware. As a result, each of LIVK’s issued and outstanding Class A ordinary shares and Class B ordinary shares automatically converted by operation of law, on a one-for-one basis, into shares of common stock. Similarly, all of LIVK’s outstanding warrants became warrants to acquire shares of common stock.
•LIVK entered into subscription agreements with certain investors pursuant to which such investors collectively subscribed for 2,760,000 shares of the Company's common stock at $10.00 per share for aggregate proceeds of $27,600,000 (the “PIPE Financing”).
•Holders of 7,479,065 of LIVK’s Class A ordinary shares originally sold in LIVK's initial public offering, or 93% of the shares with redemption rights, exercised their right to redeem their shares for cash at a redemption price of approximately $10.07 per share, for an aggregate redemption amount of $75.3 million.
•The Business Combination was effected through the merger of Legacy AgileThought with and into LIVK, whereupon the separate corporate existence of Legacy AgileThought ceased and LIVK was the surviving corporation.
•On the Closing Date, the Company changed its name from LIV Capital Acquisition Corp. to AgileThought, Inc.
•An aggregate of 34,557,480 shares of common stock were issued to holders of Legacy AT common stock and 2,000,000 shares of common stock were issued to holders of Legacy AT preferred stock as merger consideration.
•After adjusting its embedded derivative liabilities to fair value, upon conversion of the preferred stock, the Company's embedded derivative liabilities were extinguished during the third quarter of 2021. Refer to Note 4, Fair Value Measurements for additional information.
•The Company's private placement warrants meet the criteria for liability classification. During 2021, the Company recognized a gain of $4.7 million on private placement warrants to reflect the change in fair value. For additional information on our warrants, refer to Note 15, Warrants, and Note 4, Fair Value Measurements.
The following table reconciles the elements of the Business Combination to the additional paid-in capital in the Consolidated Statement of Stockholders’ Equity for the year ended December 31, 2021:
95
| (in thousands USD) | Business Combination | ||||
| Cash - LIVK trust and cash, net of redemptions | $ | 5,749 | |||
| Cash - PIPE Financing | 27,600 | ||||
| Less: Transaction costs | (13,033) | ||||
| Net proceeds from the Business Combination | 20,316 | ||||
| Less: Initial fair value of warrant liabilities recognized in the Business Combination | (15,123) | ||||
| Equity classification of Public Warrants | 8,292 | ||||
| Surrender of related party receivables | (1,359) | ||||
| Debt conversion | 38,120 | ||||
Conversion of mezzanine equity1 | 15,594 | ||||
| Net adjustment to total equity from the Business Combination | $ | 65,840 | |||
1 Relates to the transfer from mezzanine equity to permanent equity of the preferred contribution received from LIV Capital on February 02, 2021, which was considered part of the PIPE financing and upon the transaction close, was reclassified to permanent equity of the Company. | |||||
The number of shares of common stock issued immediately following the consummation of the Business Combination:
| Number of Shares | |||||
| Class A ordinary shares of LIVK outstanding prior to the Business Combination | 8,050,000 | ||||
| Less: redemption of LIVK's Class A ordinary shares | (7,479,065) | ||||
| Shares of LIVK's Class A ordinary shares | 570,935 | ||||
| Shares held by LIVK's sponsor and its affiliates | 2,082,500 | ||||
| Shares issued in the PIPE Financing | 2,760,000 | ||||
| Shares issued to convert Legacy AgileThought's preferred stock to common stock | 2,000,000 | ||||
| Shares issued to Legacy AgileThought's common stock holders | 34,557,480 | ||||
| Total shares of common stock immediately after the Business Combination | 41,970,915 | ||||
Note 4 – Fair Value Measurements
The carrying amount of assets and liabilities including cash and cash equivalents, restricted cash, accounts receivable and accounts payable approximated their fair value as of December 31, 2022, and December 31, 2021, due to the relative short maturity of these instruments.
Long-term Debt
Our debt is not actively traded and the fair value estimate is based on discounted estimated future cash flows which are significant unobservable inputs in the fair value hierarchy. The future cash flow requires estimates for future market-based inputs including discount rates, projected future floating rates, and risk-free rates. As such, these estimates are classified as Level 3 in the fair value hierarchy.
The following table summarizes our debt instruments where fair value differs from carrying value:
| Fair Value | December 31, 2022 | December 31, 2021 | |||||||||||||||||||||||||||
| (in thousands USD) | Hierarchy Level | Carry Amount | Fair Value | Carry Amount | Fair Value | ||||||||||||||||||||||||
Bank credit agreement | Level 3 | $ | — | $ | — | $ | 31,882 | $ | 31,897 | ||||||||||||||||||||
| Second Lien Facility | Level 3 | 19,409 | 17,990 | 16,120 | 16,214 | ||||||||||||||||||||||||
| Blue Torch Credit Facility | Level 3 | 55,000 | 52,888 | — | — | ||||||||||||||||||||||||
| Purchase Price Obligation Note Payable | Level 3 | 10,243 | 8,837 | 8,791 | 8,791 | ||||||||||||||||||||||||
The above table excludes our revolving credit facility, subordinated promissory note payable and subordinated zero-coupon loan as these balances approximate fair value due to the short-term nature of our borrowings. The above table also excludes our Paycheck Protection Program loans (“PPP loans”) as the carrying value of the Company’s PPP loans
96
approximates fair value based on the current yield for debt instruments with similar terms. Refer to Note 9, Long-term Debt, for additional information.
Warrant Liability
As of December 31, 2022, the Company has private placement warrants, which are liability classified, as discussed in Note 15, Warrants. The Company's private placement warrants are classified as Level 3 of the fair value hierarchy due to use of significant inputs that are unobservable in the market. Private placement warrants are fair valued using the Black-Scholes model, which required a risk-free rate assumption based upon constant-maturity treasury yields. Other significant inputs and assumptions in the model are the stock price, exercise price, volatility, and term or maturity. The volatility input was determined using the historical volatility of comparable publicly traded companies which operate in a similar industry or compete directly against the Company.
The following table presents the changes in the fair value of private warrant liability at December 31, 2022:
| (in thousands USD) | Private Placement Warrants | ||||
| Beginning balance, January 1, 2022 | $ | 2,137 | |||
| Change in fair value | 169 | ||||
Ending balance, December 31, 2022 | $ | 2,306 | |||
Embedded Derivative Liability
In connection with the amendment to the Second Lien Facility on August 10, 2022, the Company bifurcated embedded derivatives associated with conversion features for Mexican peso-denominated tranches. Embedded derivative liabilities are carried at fair value and classified as Level 3 in the fair value hierarchy. The Company determined the fair values of the bifurcated embedded derivatives by using a scenario-based analysis that estimated the fair value of each embedded derivative based on a probability-weighted present value of all possible outcomes related to the features. The significant unobservable inputs used in the fair value of the Company’s embedded derivative liabilities include the implied volatility, the period in which the outcomes are expected to be achieved and the discount rate.
The following table presents the changes in the fair value of the embedded derivative liabilities at December 31, 2022:
| (in thousands USD) | Embedded derivative liability | ||||
| Beginning balance, January 1, 2022 | $ | — | |||
| Recognition of embedded derivative liability | 9,014 | ||||
| Change in valuation inputs and other assumptions | (3,337) | ||||
Gain on debt extinguishment1 | (5,670) | ||||
Ending balance, December 31, 2022 | $ | 7 | |||
| Less: Current portion | $ | 7 | |||
| Embedded derivative liability, net of current portion | $ | — | |||
1 - The November 18, 2022, letter agreement between the Company and the Credit Suisse lenders (refer to Note 9, Long-term Debt) significantly altered the conversion feature of the previously recognized embedded derivative resulting in a debt extinguishment. Under extinguishment accounting this debt modification required the previously recognized embedded derivative liability to be adjusted to its new fair value.
97
Note 5 – Balance Sheet Details
The following table provides detail of selected balance sheet items:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Cash and cash equivalents | $ | 8,478 | $ | 8,463 | |||||||
| Restricted cash | 213 | 177 | |||||||||
| Total cash, cash equivalents and restricted cash | $ | 8,691 | $ | 8,640 | |||||||
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Accounts receivables | $ | 15,839 | $ | 19,173 | |||||||
| Unbilled accounts receivables | 12,945 | 11,716 | |||||||||
| Other receivables | 435 | 686 | |||||||||
| Allowance for doubtful accounts | (158) | (188) | |||||||||
| Total accounts receivable, net | $ | 29,061 | $ | 31,387 | |||||||
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Employee retention credit | $ | 4,775 | $ | — | |||||||
| Income tax receivables | 3,077 | 2,369 | |||||||||
| Prepaid expenses and other current assets | 2,008 | 5,121 | |||||||||
| Total prepaid expenses and other current assets | $ | 9,860 | $ | 7,490 | |||||||
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Accrued wages, vacation & other employee related items | $ | 3,362 | $ | 2,387 | |||||||
| Accrued interest | 978 | 381 | |||||||||
| Accrued incentive compensation | 712 | 654 | |||||||||
| Accrued services | 3,426 | 5,872 | |||||||||
| Accrued liabilities - Related Party | — | 17 | |||||||||
| Other accrued liabilities | 636 | 467 | |||||||||
| Total accrued liabilities | $ | 9,114 | $ | 9,778 | |||||||
The following table is a rollforward of the allowance for doubtful accounts:
| (in thousands USD) | 2022 | 2021 | |||||||||
| Beginning balance, January 1 | $ | 188 | $ | 267 | |||||||
| Charges to expense | (28) | 1,307 | |||||||||
| Write-offs and recoveries | — | (1,382) | |||||||||
| Foreign currency translation | (2) | (4) | |||||||||
Ending balance, December 31 | $ | 158 | $ | 188 | |||||||
The Company records any obligations for contingent purchase price at fair value. The Company recorded the 2019 acquisition-date fair value of a contingent liability based on the likelihood of contingent earn-out payments through the year ended December 31, 2021 subject to the underlying agreement terms. As of December 31, 2021 the obligation now relates to a known and fixed amount due and is no longer a contingent obligation recorded at fair value. The amount due accrues interest at 12%. On November 15, 2022, the Company entered into an amendment to change terms of the AN Extend portion of the purchase price obligation note payable. The amendment converted the note from Mexican pesos to U.S. dollars with capitalized interest added, set the applicable interest to 11% annually, set a maturity date of November 15, 2023, as well as added mandatory conversion. If the note is not paid in full prior to the maturity date, the total amount of principal and the interest will be converted within the following 30 calendar days counted from the maturity date with
98
common shares of common stock, taking as value of the shares the value resulting from using the Volume Weighted Moving Average Price. This amendment was determined to substantially alter the AN Extend portion of the purchase price obligation note payable such that extinguishment accounting was applied. The Company recognized a loss on debt extinguishment of $0.7 million for the three months ended December 31, 2022. Payment of any and all of the purchase price obligation note payable is subordinate of all existing senior debt, including the Blue Torch Credit Facility and the Second Lien Facility. In the event of any liquidation, dissolution, or bankruptcy proceedings, all senior debt shall first be paid in full before any distribution shall be made to the purchase price obligation note payable creditors.
The following table provides a roll-forward related to the 2019 acquisition due to the seller:
| (in thousands USD) | Purchase Price Obligation Note Payable | ||||
| Opening balance, January 1, 2022 | $ | 8,791 | |||
| Additional principal from amendments | 574 | ||||
| Accrued interest on the contingent consideration | 763 | ||||
| Effect of exchange rate fluctuations | 115 | ||||
| Ending balance, December 31, 2022 | 10,243 | ||||
| Less: Current portion | 10,243 | ||||
| Purchase price obligation note payable, net of current portion | $ | — | |||
Note 6 – Property and Equipment, Net
Property and equipment, net consist of the following:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Computer equipment | $ | 4,366 | $ | 4,210 | |||||||
| Leasehold improvements | 1,352 | 2,179 | |||||||||
| Furniture and equipment | 1,328 | 1,691 | |||||||||
| Computer software | 3,264 | 2,240 | |||||||||
| Transportation equipment | 24 | 55 | |||||||||
| Finance lease right-of-use assets | 643 | — | |||||||||
| 10,977 | 10,375 | ||||||||||
| Less: accumulated depreciation | (7,733) | (7,268) | |||||||||
| Property and equipment, net | $ | 3,244 | $ | 3,107 | |||||||
Depreciation expense was $1.2 million for the years 2022 and 2021. The Company did not recognize impairment charges related to property and equipment in 2022 and 2021.
99
Note 7 – Goodwill and Intangible Assets, Net
The following table presents goodwill by reporting unit for the years ended December 31, 2022 and 2021.
| (in thousands USD) | LATAM | USA | Total | ||||||||||||||
| December 31, 2020 | $ | 40,470 | $ | 30,694 | $ | 71,164 | |||||||||||
| Foreign currency translation | $ | (819) | $ | — | $ | (819) | |||||||||||
| December 31, 2021 | $ | 39,651 | $ | 30,694 | $ | 70,345 | |||||||||||
| Foreign currency translation | 839 | — | 839 | ||||||||||||||
| December 31, 2022 | $ | 40,490 | $ | 30,694 | $ | 71,184 | |||||||||||
No impairment charges were recognized related to goodwill the year ended 2022 and 2021.
The Company’s indefinite-lived intangible assets relate to trade names acquired in connection with business combinations. The indefinite-lived trade names balance was $16.5 million and $16.3 million as of December 31, 2022 and 2021, respectively. No impairment charges were recognized related to indefinite-lived intangible assets for the year ended December 31, 2022 and 2021.
Changes in our finite-lived intangible assets is as follows:
| As of December 31, 2022 | |||||||||||||||||||||||||||||
| (in thousands USD) | Gross Carrying Amount | Currency Translation Adjustment | Accumulated Amortization | Net Carrying Amount | Weighted Average Remaining Useful Life (Years) | ||||||||||||||||||||||||
| Customer relationships | $ | 89,915 | $ | (72) | $ | (29,250) | 60,593 | 10.8 | |||||||||||||||||||||
| Tradename | 1,234 | 16 | (488) | 762 | 2.9 | ||||||||||||||||||||||||
| Total | $ | 91,149 | $ | (56) | $ | (29,738) | $ | 61,355 | 10.7 | ||||||||||||||||||||
| As of December 31, 2021 | |||||||||||||||||||||||||||||
| (in thousands USD) | Gross Carrying Amount | Currency Translation Adjustment | Accumulated Amortization | Net Carrying Amount | Weighted Average Remaining Useful Life (Years) | ||||||||||||||||||||||||
| Customer relationships | $ | 89,915 | $ | (973) | $ | (23,669) | 65,273 | 11.8 | |||||||||||||||||||||
| Tradename | 1,234 | (31) | (243) | 960 | 3.9 | ||||||||||||||||||||||||
| Total | $ | 91,149 | $ | (1,004) | $ | (23,912) | $ | 66,233 | 11.7 | ||||||||||||||||||||
The Company recorded $5.8 million in finite-lived intangible asset amortization expense for the years ended December 31, 2022 and 2021. No impairment charges were recognized related to finite-lived intangible assets for the year ended December 31, 2022 and 2021.
The estimated amortization schedule for the Company’s intangible assets for future periods is as follows:
| (in thousands USD) | Year ending December 31, | ||||
| 2023 | $ | 5,826 | |||
| 2024 | 5,826 | ||||
| 2025 | 5,826 | ||||
| 2026 | 5,610 | ||||
| 2027 | 5,581 | ||||
| Thereafter | 32,686 | ||||
| Total | $ | 61,355 | |||
100
Note 8 – Leases
The Company leases office space, IT equipment, and furniture used for operations. As of December 31, 2022, these leases have remaining terms of up to 4 years, some of which may contain options to extend or terminate the lease before the expiration date. Additionally, the Company does not have any material finance, lessor, or sub-leasing arrangements. Total lease expense, net was $1.9 million and $3.8 million for the years ended December 31, 2022 and 2021, respectively, and includes short-term and variable lease costs.
Supplemental information related to our leases is as follows for the year ended:
| December 31, 2022 | December 31, 2021 | ||||||||||
| Weighted average remaining lease term, in years: | 1.91 | 2.91 | |||||||||
| Weighted average discount rate: | 8.4 | % | 8.4 | % | |||||||
Future expected maturities of lease obligations as of December 31, 2022 are as follows:
| (in thousands USD) | Lease Payments | ||||
| 2023 | $ | 2,746 | |||
| 2024 | 2,459 | ||||
| 2025 | 1,324 | ||||
| 2026 | 289 | ||||
| Thereafter | — | ||||
| Total undiscounted lease payments | 6,818 | ||||
| Less: imputed interest | 723 | ||||
| Present value of lease liability | $ | 6,095 | |||
101
Note 9 – Long-term Debt
Long-term debt at December 31, 2022 and 2021 consists of the following:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
Borrowings under revolving credit agreement, principal due January 1, 2025 | $ | 3,000 | $ | — | |||||||
Borrowings under term loan, principal due January 1, 2025 | 55,000 | — | |||||||||
Unamortized debt issuance costs(a) | (4,817) | — | |||||||||
Blue Torch Credit Facility, net of unamortized debt issuance costs | 53,183 | — | |||||||||
Borrowings under bank revolving credit agreement, principal due Nov. 10, 2023 | — | 5,000 | |||||||||
Borrowings under bank credit agreement, principal due Nov. 10, 2023 | — | 31,882 | |||||||||
Unamortized debt issuance costs(a) | — | (6,915) | |||||||||
Borrowing under bank credit agreements, net of unamortized debt issuance costs | — | 29,967 | |||||||||
Paycheck Protection Program loans, 1% interest, due May 2, 2025 | 234 | 7,673 | |||||||||
Subordinated promissory note payable with a related party, 20% effective December 21, 2021, principal due March 31, 2023 | 673 | 673 | |||||||||
| Subordinated debt, guaranteed by a related party, principal due July 27, 2023 | 3,700 | 3,700 | |||||||||
Unamortized debt issuance costs(a) | (70) | (76) | |||||||||
| Subordinated debt, guaranteed by a related party, net of unamortized debt issuance costs | 3,630 | 3,624 | |||||||||
Borrowings under convertible note payable with a related party, 11% interest capitalized every three months, principal due September 15, 2026 | 44 | 22 | |||||||||
Borrowings under convertible note payable with a related party, 11% interest capitalized every three months, principal due July 1, 2025 | 3,365 | 3,015 | |||||||||
Borrowings under convertible note payable with a related party, 17.41% interest capitalized every three months, principal due July 1, 2025 | 7,423 | 5,894 | |||||||||
Borrowings under convertible note payable with a related party, 11% interest capitalized every three months, principal due June 15, 2023 | 3,724 | 3,336 | |||||||||
Borrowings under convertible note payable with a related party, 17.41% interest capitalized every three months, principal due June 15, 2023 | 4,853 | 3,853 | |||||||||
Unamortized debt discount, net(a) | (1,073) | (945) | |||||||||
| Second Lien Facility, net of unamortized debt issuance costs | 18,336 | 15,175 | |||||||||
Total debt, net of unamortized debt issuance costs | 76,056 | 57,112 | |||||||||
| 533 | — | ||||||||||
Current portion of debt and financing obligations | (37,194) | (14,838) | |||||||||
Long-term debt and financing obligations, net of unamortized debt issuance cost/discount, net and current portion | $ | 39,395 | $ | 42,274 | |||||||
_________________
(a)Debt issuance costs, premium, and discount are presented as a reduction, addition, and reduction to the Company’s debt, respectively in the Consolidated Balance Sheets. $3.0 million and $3.5 million of debt issuance cost amortization was charged to interest expense for the years ended December 31, 2022 and 2021, respectively.
As of the issuance date of these consolidated financial statements, the Company expects its cash and cash equivalents of $8.5 million as of December 31, 2022 and cash flows from operations will be sufficient to fund its operating expenses and expenditure requirements for the next 12-months. The Company’s ability to generate additional cash flows will be dependent on increasing revenues, securing stronger profit margins, and reducing debt. There are a substantial amount of debt and other obligations, and the Company does not currently have sufficient available cash flows to service upcoming
102
payment commitments and may not have sufficient cash flows or assets to repay our debt and other obligations in full when due.
In order to increase cash flows from operating activities, the Company is implementing cost reductions initiatives to reduce selling, general, and administrative expenses, in particular reducing overhead in non-revenue production activities. In addition, the Company’s investments made to increase the sales team during the past six-months are expected to contribute to positive revenue growth and stronger gross margins.
Blue Torch Credit Facility
On May 27, 2022, the Company entered into a financing agreement (“Blue Torch Credit Facility”) by and among the Company, AN Global LLC, certain subsidiaries of the Company, as guarantors (the “Guarantors”), the financial institutions party thereto as lenders, and Blue Torch Finance LLC (“Blue Torch”), as the administrative agent and collateral agent. The Blue Torch Credit Facility is secured by substantially all of the Company’s and the Guarantors’ properties and assets and provides for a term loan of $55.0 million and revolving credit facility with an aggregate principal limit not to exceed $3.0 million at any time outstanding. On May 27, 2022, the Company borrowed the full $55.0 million under the term loan. On June 28, 2022, the Company borrowed $3.0 million under the revolving credit facility. The Company recognized $5.0 million in debt issuance costs.
On August 10, 2022, the Company entered into a waiver and amendment to the Blue Torch Credit Facility to provide for an extension of the period of time which the Company has to satisfy certain reporting and post-closing obligations under the Blue Torch Credit Facility. The Company recognized $0.6 million in debt issuance costs related to the wavier and amendment. On November 1, 2022, the Company entered into an amendment to further extend the period of time which the Company has to satisfy certain reporting and post-closing obligations.
As of December 31, 2022, the Company was in default under the permitted factoring disposition and leverage ratio covenants. Subsequent to December 31, 2022, the Company was also in default under the leverage ratio, liquidity, aged accounts payables, permitted payments and other covenants under the Blue Torch Credit Facility. As a result of such defaults, the Company entered into a waiver and amendment on March 7, 2023 (“Amendment No.4”) to revise significant terms of the Blue Torch Credit Facility as set forth below.
Pursuant to Amendment No.4, the Company agreed to pay approximately $34.0 million of the Company’s total indebtedness and related obligations in 2023, including principal payments of $15.0 million by April 15, 2023, $20.0 million by June 15, 2023 (inclusive of the $15.0 million by April 15, 2023 if not paid by then) and $25.0 million by September 15, 2023 (inclusive of the $20.0 million by June 15, 2023 if not paid by then) to the Blue Torch Lenders. Thereafter, the Company will make quarterly payments on the term loan of approximately $0.7 million starting December 31, 2023. The amendment also revised the maturity date of the Blue Torch Credit Facility from May 27, 2026 to January 1, 2025 and revised the interest provisions to remove the step-down in interest rate based on the Company’s total leverage ratio. Interest is paid quarterly for both loans, and is calculated based on the Adjusted Term SOFR (the three-month Term Secured Overnight Financing Rate, plus 0.26161%) plus a margin of 9.0% annually. Interest on each loan is payable on the last day of the then effective interest period applicable to such loan and at maturity. The revolving credit facility will bear a 2.0% annual usage fee on any undrawn portion of the facility. In connection with Amendment No.4, the Company agreed to pay the administrative agent a fee equal to $6.0 million, which was paid in kind by adding such capitalized amount to the outstanding principal of the term loan. In addition, if the Company fails to repay the respective aggregate principal amounts on or prior to April 15, 2023, June 15, 2023 and September 15, 2023, a failed payment fee equal to $4.0 million, $2.0 million and $3.0 million respectively will be paid in kind by adding such fee to the outstanding principal of the term loan. If we meet these payments when due then no fee will be added to the outstanding principal. Failure to make these payments would constitute an event of default but will not result in the ability of the administrative agent to accelerate indebtedness under the Blue Torch Facility. Amendment No. 4 also required the Company to engage both a financial advisor to support the Company’s capital raising needs and an operational advisor to conduct a formal assessment of the Company’s financial performance, in both cases on terms reasonable acceptable to Blue Torch.
Lastly, the amendment granted a waiver for certain financial covenants as of December 31, 2022 and reset the covenant requirements for future periods.
Second Lien Facility
103
On November 22, 2021, the Company entered into a new Second Lien Facility (the “Second Lien Facility”) with Nexxus Capital and Credit Suisse (both of which are existing AgileThought shareholders and have representation on AgileThought’s Board of Directors), Manuel Senderos, Chief Executive Officer and Chairman of the Board of Directors, and Kevin Johnston, Chief Operating Officer. The Second Lien Facility provides for a term loan facility in an initial aggregate principal amount of approximately $20.7 million, accruing interest at a rate per annum from 11.00% for the US denominated loan and 17.41% for the Mexican Peso denominated Loan. The Second Lien Facility had an original maturity date of March 15, 2023. The Company recognized $0.9 million in debt issuance costs with the issuance.
On August 10, 2022, the Company entered into an amendment to the Second Lien Facility to extend the maturity date of the Tranche A (Credit Suisse), Tranche C (Senderos), Tranche D (Senderos) and Tranche E (Johnston) loans to September 15, 2026, and provide for potential increases, that step up over time from one percent to five percent, in the interest rate applicable to the Tranche A loans. The amendment also extended the maturity date of the Tranche B (Nexxus Capital) loans thereunder to June 15, 2023, and provides for a mandatory conversion of the Tranche B loans thereunder, including interest and fees, into equity securities of the Company upon the maturity of said loans at a conversion price equal to $4.64 per share, subject to regulatory approval. The amendment also provided for the covenants and certain other provisions of the Second Lien Facility to be made consistent with those in the Blue Torch Credit Facility (and in certain cases for those covenants to be made less restrictive than those in the Blue Torch Credit Facility). This amendment was determined to substantially alter the debt agreement such that extinguishment accounting was applied. The Company recognized a loss on debt extinguishment of $11.7 million for the three months ended September 30, 2022. As part of the reassessment of the debt instrument, the Company bifurcated the conversion option on the Mexican peso-dominated loans and recognized an embedded derivative liability of $9.0 million as of the amendment date. See Note 4, Fair Value Measurements, for additional information.
On November 18, 2022, the Company entered into a letter agreement with Credit Suisse, as the Tranche A lenders. The letter agreement changed the conversion price at which the Credit Suisse lenders may convert their outstanding loans, interest, and fees into the Company’s common stock from a fixed conversion price of $4.64 per share to the closing price of one share of our common stock on the trading day immediately prior to the conversion date, subject to a floor price of $4.64 per share. This amendment was determined to substantially alter the Credit Suisse portion of the debt agreement such that extinguishment accounting was applied. The Company recognized a gain on debt extinguishment of $8.8 million for the three months ended December 31, 2022. The total loss on debt extinguishment related to the Second Lien Facility was $2.9 million for the twelve months ended December 31, 2022.
Each Second Lien Lender has the option to convert all or any portion of its outstanding loans, interest and fees into common stock of the Company at any time at the respective conversion prices. On December 27, 2021, Manuel Senderos and Kevin Johnston exercised the conversion options for their respective principal amounts of $4.5 million and $0.2 million, respectively, at the original conversion price of $10.19 per share. See Note 16, Stockholders’ Equity, for additional information. As noted above, on June 15, 2023, the outstanding principal, interest and fees related to the Nexxus Capital loans will convert into common stock of the Company at the conversion price of $4.64 per share. As of December 31, 2022, the outstanding principal, interest and fees related to the Nexxus Capital loans was $8.6 million.
On March 7, 2023, in connection with Amendment No. 4 to the Blue Torch Credit Facility, the Company entered into a sixth amendment to the Second Lien Facility (“Amendment No. 6”). Amendment No. 6 revised the maturity date of the Credit Suisse loans from September 15, 2026 to July 1, 2025. Amendment No. 6 also provided for the covenants and certain other provisions of the Second Lien Facility to be consistent with those in the Blue Torch Credit Facility, as amended by Amendment No. 4, except as set forth below in Financial Covenants.
AGS Subordinated Promissory Note
On June 24, 2021, the Company entered into a credit agreement with AGS Group LLC (“AGS Group”) for a principal amount of $0.7 million. The principal amount outstanding under this agreement matured on December 20, 2021 (“Original Maturity Date”) and was extended until May 19, 2022 (“Extended Maturity Date”). On August 4, 2022, the Company entered into an another amendment to further extend the maturity date of the AGS Subordinated Promissory Note to January 31, 2023 ("January 2023 Maturity Date"). Interest is due and payable in arrears on the Original Maturity Date at a 14.0% per annum until and including December 20, 2021 and at 20.0% per annum from the Original Maturity Date to the January 2023 Maturity Date calculated on the actual number of days elapsed.
Subsequently, on January 31, 2023, the AGS Subordinated Promissory Note was cancelled in full and restated for a principal amount of $0.8 million with accrued interest of $0.1 million. The outstanding principal and interest matures on March 31, 2023. In addition, the Company also agreed to the issuance of common stock with a value of approximately
104
$1.8 million, equal to approximately two times the current outstanding principal and interest. On February 10, 2023, the Company issued 414,367 shares to serve as collateral. Upon the earlier of the Extended Maturity Date or an event of default, AGS Group may sell those shares and apply 100% of the net proceeds therefrom to repay the AGS Subordinated Promissory Note. If the net proceeds from sales of the shares exceed the indebtedness owed by the Company, AGS Group shall remit such excess cash proceeds to the Company. Upon payment in full of the AGS Subordinated Promissory Note in cash by us or through sales of the shares by AGS Group, AGS Group shall return any of the unsold shares to to the Company.
Under the terms of the Blue Torch Credit Facility and the Second Lien Facility, the Company may only repay the AGS Subordinated Promissory Note with the proceeds of an equity issuance, and then only if the total leverage ratio is 2.50 to 1.00 or less and the Company is in compliance with all financial covenants and no event of default has occurred and is continuing under the Blue Torch Credit Facility and the Second Lien Facility. The Company has entered into a letter agreement with AGS Group to provide that a failure to pay such indebtedness will not be deemed an event of default.
Exitus Capital Subordinated Debt
On July 26, 2021, the Company agreed with existing lenders and Exitus Capital (“Subordinated Creditor”) to enter into a zero-coupon subordinated loan agreement with Exitus Capital in an aggregate principal amount equal to $3.7 million (“Subordinated Debt”). Net loan proceeds totaled $3.2 million, net of $0.5 million in debt discount. No periodic interest payments are currently required and the loan was due on January 26, 2022, with an option to extend up to two additional six month terms. On January 25, 2022 and July 26, 2022, the Company exercised its option to extend the loan an additional six months, recognizing an additional $0.5 million debt issuance costs related to each loan extension.
Subsequently, on January 26, 2023, the Company entered into an amendment to extend the maturity date of the Exitus Capital Subordinated Debt from January 26, 2023 to July 27, 2023. In addition, AgileThought paid approximately $1.1 million of the principal amount of the loan on January 27, 2023, plus a fee of approximately $0.4 million. On February 27, 2023 the Company paid an addition $1 million of the principal. The remaining principal of approximately $1.6 million will be due and payable on the new maturity date of July 27, 2023. In addition, on January 31, 2023, the Company agreed to the issuance of common stock with a value of approximately $5.2 million, equal to approximately two times the current outstanding principal and interest. On February 10, 2023, the Company issued 1,207,712 shares to serve as collateral. The Company is obligated to issue additional shares to Exitus Capital from time to time if the value of the shares held by them is less two times than the outstanding principal amount of the loan. Upon the earlier of the July 27, 2023 or an event of default, Exitus Capital may sell those shares and apply 100% of the net proceeds therefrom to repay the Exitus Capital Subordinated Debt. If the net proceeds from sales of the shares exceed the indebtedness owed by the Company, Exitus Capital shall remit such excess cash proceeds to the Company. Upon payment in full of the Exitus Capital Subordinated Debt in cash by us or through sales of the shares by Exitus Capital, Exitus Capital shall return any of the unsold shares to the Company.
Under the terms of the Blue Torch Credit Facility and the Second Lien Facility, the Company may only repay the Exitus Capital Subordinated Debt if the Company has repaid Blue Torch $15.0 million and $5.0 million by April 15, 2023 and June 15, 2023, respectively. If the Company is unable to satisfy these conditions, the Company plans to further extend the maturity date or substitute the Exitus Capital Subordinated Debt as may be permitted under the Blue Torch Credit Facility and the Second Lien Facility. Any such modifications are also subject to the prior consent of Blue Torch and the Second Lien Lenders. A failure to pay the indebtedness due to Exitus Capital will be a payment default under its terms, which would allow Exitus Capital to accelerate the indebtedness. In addition, a failure to pay Exitus Capital will be a cross-default under both the Blue Torch Credit Facility and Second Lien Facility, but would not allow either of the Blue Torch or Second Lien Lenders to accelerate indebtedness due under their respective loans unless Exitus Capital accelerates the amounts due to it.
Paycheck Protection Program Loans
On April 30, 2020 and May 1, 2020, the Company received Paycheck Protection Program loans (“PPP loans”) through four of its subsidiaries for a total amount of $9.3 million. The PPP loans bear a fixed interest rate of 1% over a two-year term, are guaranteed by the United States federal government, and do not require collateral. The loans may be forgiven, in part or whole, if the proceeds are used to retain and pay employees and for other qualifying expenditures. The Company submitted its forgiveness applications to the Small Business Administration (“SBA”) between November 2020 and January 2021. On December 25, 2020, $0.1 million of a $0.2 million PPP loan was forgiven. On March 9, 2021, $0.1 million of a $0.3 million PPP loan was forgiven. On June 13, 2021, $1.2 million of a $1.2 million PPP loan was forgiven. On January
105
19, 2022, $7.3 million of a $0.1 million PPP loan was forgiven resulting in a remaining PPP Loan balance of $0.3 million of which $0.1 million is due within the next year. The remaining payments will be made quarterly until May 2, 2025. All loan forgiveness was recognized in Other income (expense), net of the Consolidated Statements of Operations.
Prior First Lien Facility
In 2018, the Company entered into a revolving credit agreement with Monroe Capital Management Advisors LLC that permitted the Company to borrow up to $1.5 million through November 10, 2023. In 2019, the agreement was amended to increase the borrowing limit to $5.0 million. Also in 2018, the Company entered into a term loan credit agreement with Monroe Capital Management Advisors LLC that permitted the Company to borrow up to $75.0 million through November 10, 2023. In 2019, the agreement was amended to increase the borrowing amount to $98.0 million. Interest on the revolving credit agreement and term loan agreement (“First Lien Facility”) were paid monthly and calculated as LIBOR plus a margin of 8.0% to 9.0%, based on the Total Leverage Ratio as calculated in the most recent Compliance Certificate. An additional 2.0% interest were incurred during periods of loan covenant default.
On March 22, 2021, the Company used $20.0 million from proceeds of issuance of preferred stock to partially pay the First Lien Facility. Refer to Note 16, Stockholders’ Equity, for additional information on issuance of preferred stock.
On June 24, 2021, an amendment was signed to modify the debt covenants for the periods June 30, 2021 and thereafter. In addition to the covenant modifications, the amendment also established the deferral of the monthly $1.0 million principal payments previously due in April and May, along with the $1.0 million payments due in June and July to September 30, 2021. As a result, the regular quarterly principal installments resumed, and the First Lien lenders charged a $4.0 million fee paid upon the end of the term loan in exchange for the amended terms. The amendment resulted in a debt modification, thus the fees payable to the First Lien lenders were capitalized and were amortized over the remaining life of the First Lien Facility. From September 30, 2021 to October 29, 2021, the Company entered into various amendment to extend the due date of the $4.0 million in principal payments previously due September 30, 2021 to November 19, 2021.
On November 29, 2021, the Company made a $20.0 million principal prepayment, which included the $4.0 million principal payment that was originally due September 30, 2021. The Company paid with proceeds from the Second Lien Facility. Furthermore, on December 29, 2021, the Company issued 4,439,333 shares of common stock to the administrative agent for the First Lien Facility (the “First Lien Shares”), which subject to certain terms and regulatory restrictions, may sell the First Lien Shares upon the earlier of August 29, 2022 and an event of default and apply the proceeds to the outstanding balance of the loan. In addition, the Company agreed to issue warrants to the administrative agent to purchase $7 million worth of the Company’s common stock for nominal consideration. The warrants will be issued on the earlier of full repayment of outstanding deferred fees or August 29, 2023. In addition, the Company may be required to pay the First Lien lenders cash to the extent that we cannot issue some or all of the warrants due to regulatory restrictions. The First Lien lenders charged an additional $2.9 million fee paid upon the end of the term loan in exchange for the amended terms.
On November 22, 2021, the Company entered into an amendment that requires sixty percent (60%) of proceeds from future equity issuances be used to repay the outstanding balance on the First Lien Facility. On December 27, 2021, the Company closed a follow on stock offering resulting in $21.8 million of net proceeds, of which $13.7 million was used as payment of the outstanding principal and interest balances for the First Lien Facility.
On March 30, 2022, the Company entered into an amendment with the First Lien and Second Lien Facility Lenders to waive the Fixed Charge Coverage Ratio for March 31, 2022. In addition, the Total Leverage Ratio covenant for the quarterly period of March 31, 2022 was reset. As consideration for entering into this amendment, the Company agreed to pay the First Lien Facility’s administrative agent a fee equal to $0.5 million. The fee would be fully earned as of March 30, 2022 and due and payable upon the end of the term loan. However, the agreement provided that the fee shall be waived in its entirety if final payment in full occurred prior to or on May 30, 2022. This modification triggered by this new amendment was determined to be substantially different to the old instrument, therefore the modification was accounted for as an extinguishment and the debt instrument was adjusted to fair value as of the March 31, 2022. The Company recognized a loss on debt extinguishment of $7.1 million in the Unaudited Condensed Consolidated Statement of Operations for the three months ended March 31, 2022.
On May 27, 2022, the Company paid approximately $40.2 million to settle the outstanding principal, interest, and a portion of the $6.9 million deferred fees related to amendments on the First Lien Facility. The First Lien Lenders waived the $0.5 million fee related to the March 30, 2022 amendment and returned 2,423,204 First Lien Shares as part of the deferred fees settlement. Since August 29, 2022 the First Lien Lenders may sell the remaining First Lien Shares and apply 100% of the net proceeds to the outstanding fees obligation. The First Lien Lenders shall return any of the remaining
106
unsold First Lien Shares upon full payment of the remaining fees. At December 31, 2022, total deferred fees payable on or before May 25, 2023, including fees recognized from prior amendments, totaled $3.5 million. These fees are recognized in Other current liabilities in and Other noncurrent liabilities in the Audited Consolidated Balance Sheet at December 31, 2022 and December 31, 2021, respectively. The Company recognized a gain on debt extinguishment of $1.0 million for the three months ended June 30, 2022. The total loss on debt extinguishment related to the First Lien Facility was $6.2 million for the twelve months ended December 31, 2022.
Prior Second Lien Facility
On July 18, 2019, the Company entered into separate credit agreements with Nexxus Capital and Credit Suisse (“the Creditors”) that permitted the Company to borrow $12.5 million from each bearing 13.73% interest. On January 31, 2020, the agreements were amended to increase the borrowing amount by $2.05 million under each agreement. Interest was capitalized every six months and payable when the note was due. Immediately prior to the Business Combination, the Creditors exercised their option to convert their combined $38.1 million of debt outstanding (including interest) into 115,923 shares of the Company's Class A ordinary shares, which were converted into the Company's common stock as a result of the Business Combination.
Financial Covenants
The Blue Torch Credit Facility establishes the following amended financial covenants for the consolidated group:
Revenue. Requires the Company's trailing annual aggregate revenue to exceed $150.0 million as of the end of each computation period as described below.
| Computation Period Ending | Revenue | |||||||
| December 31, 2022 | $ | 150,000,000 | ||||||
| March 31, 2023 and each fiscal month ending thereafter | 150,000,000 | |||||||
Liquidity. As a result of Amendment No.4, the Company is required to maintain liquidity above $1.0 million through March 24, 2023, above $2.0 million through April 15, 2023, and above $7.0 million at any time thereafter. Liquidity is defined as the remaining capacity under the Blue Torch Credit Facility plus the total unrestricted cash on hand.
Leverage Ratio. The Leverage Ratio applies to the consolidated group and is determined in accordance with US GAAP. It is calculated as of the last day of any computation period as the ratio of (a) total debt (as defined in credit agreement) to (b) EBITDA for the computation period ending on such day. A computation period is any period of four consecutive fiscal quarters for which the last fiscal month ends on a date set forth below.
| Computation Period Ending | Leverage Ratio | |||||||
| March 31, 2023 | 6.38:1.00 | |||||||
| April 30, 2023 | 6.60:1.00 | |||||||
| May 31, 2023 | 6.20:1.00 | |||||||
| June 30, 2023 | 6.00:1.00 | |||||||
| July 31, 2023 | 5.28:1.00 | |||||||
| August 31, 2023 | 4.51:1.00 | |||||||
| September 30, 2023 | 4.12:1.00 | |||||||
| October 31, 2023 | 3.50:1.00 | |||||||
| November 30, 2023 | 3.14:1.00 | |||||||
| December 31, 2023 | 4.63:1.00 | |||||||
| January 31, 2024 and each fiscal month ending thereafter | 3.50:1.00 | |||||||
EBITDA. If the Company fails to make the $15.0 million payment and related obligations by April 15, 2023, the Company will be subjected to a consolidated earnings before interest, taxes, depreciation and amortization (“EBITDA”) covenant requirement. The Company will be required to maintain a 12-month trailing EBITDA of at least the following for each fiscal month end.
107
| Computation Period Ending | EBITDA | |||||||
| March 31, 2023 | $ | 9,953,000 | ||||||
| April 30, 2023 | 9,627,000 | |||||||
| May 31, 2023 | 10,238,000 | |||||||
| June 30, 2023 | 10,607,000 | |||||||
| July 31, 2023 | 12,023,000 | |||||||
| August 31, 2023 | 14,055,000 | |||||||
| September 30, 2023 | 15,415,000 | |||||||
| October 31, 2023 | 18,117,000 | |||||||
| November 30, 2023 | 20,224,000 | |||||||
| December 31, 2023 and each fiscal month end thereafter | 13,707,000 | |||||||
The Second Lien Facility establishes the following financial covenants for the consolidated group:
Revenue. Requires the Company's trailing annual aggregate revenue to exceed as of the end of each computation period as described below.
| Computation Period Ending | Revenue | |||||||
| December 31, 2022 | $ | 120,000,000 | ||||||
| March 31, 2023 and each fiscal month ending thereafter | 120,000,000 | |||||||
Liquidity. Requires the Company's liquidity to be (i) above $0.8 million at any time on or prior to March 24, 2023, (ii) above $1.6 million at any time from March 24, 2023 to April 15, 2023, (iii) and above $5.6 million after April 15, 2023 thereafter. Liquidity is defined as the remaining capacity under the Second Lien Facility plus the total unrestricted cash on hand.
Leverage Ratio. The Leverage Ratio applies to the consolidated group and is determined in accordance with US GAAP. It is calculated as of the last day of any computation period as the ratio of (a) total debt (as defined in credit agreement) to (b) EBITDA for the computation period ending on such day. A computation period is any period of four consecutive fiscal quarters for which the last fiscal month ends on a date set forth below.
| Computation Period Ending | First Lien Leverage Ratio | |||||||
| March 31, 2023 | 7.65:1.00 | |||||||
| April 30, 2023 | 7.92:1.00 | |||||||
| May 31, 2023 | 7.44:1.00 | |||||||
| June 30, 2023 | 7.20:1.00 | |||||||
| July 31, 2023 | 6.34:1.00 | |||||||
| August 31, 2023 | 5.41:1.00 | |||||||
| September 30, 2023 | 4.94:1.00 | |||||||
| October 31, 2023 | 4.20:1.00 | |||||||
| November 30, 2023 | 3.77:1.00 | |||||||
| December 31, 2023 | 5.56:1.00 | |||||||
| January 31, 2024 and each fiscal quarter ending thereafter | 4.20:1.00 | |||||||
EBITDA. If the Company fails to make the $15.0 million payment and related obligations by April 15, 2023 under the Blue Torch Credit Facility, the Company will be subjected to a consolidated earnings before interest, taxes, depreciation and amortization (“EBITDA”) covenant requirement. The Company will be required to maintain a 12-month trailing EBITDA of at least the following for each fiscal month end.
108
| Computation Period Ending | EBITDA | |||||||
| March 31, 2023 | $ | 7,962,400 | ||||||
| April 30, 2023 | 7,701,600 | |||||||
| May 31, 2023 | 8,190,400 | |||||||
| June 30, 2023 | 8,485,600 | |||||||
| July 31, 2023 | 9,618,400 | |||||||
| August 31, 2023 | 11,244,000 | |||||||
| September 30, 2023 | 12,332,000 | |||||||
| October 31, 2023 | 14,493,600 | |||||||
| November 30, 2023 | 16,179,200 | |||||||
| December 31, 2023 and each fiscal month end thereafter | 10,965,600 | |||||||
After giving effect to Amendment No. 4 of the Blue Torch Credit Facility and Amendment No. 6 of the Second Lien Facility, the Company was compliant with all debt covenants as of December 31, 2022.
The annual maturities of our long-term debt for the next five years and beyond are as follows:
Year, (in thousands USD) | Amount | |||||||
| 2023 | $ | 38,730 | ||||||
| 2024 | 2,844 | |||||||
| 2025 | 40,398 | |||||||
| 2026 | 44 | |||||||
| Thereafter | — | |||||||
| Total debt | 82,016 | |||||||
| Less: unamortized debt issuance cost | (5,960) | |||||||
| Total debt, net of unamortized debt issuance costs | $ | 76,056 | ||||||
Note 10 – Other Income (Expense), net
Items included in other income (expense), net in the Consolidated Statements of Operations are as follows:
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Foreign exchange (loss) gain, net | $ | 593 | $ | (1,936) | |||||||
| Forgiveness of PPP loan | 7,280 | 1,306 | |||||||||
| Interest income | — | 70 | |||||||||
| Other non-operating expense | (730) | (524) | |||||||||
| Total other income (expense), net | $ | 7,143 | $ | (1,084) | |||||||
109
Note 11 – Income Taxes
(Loss) income before income tax for the years 2022 and 2021 is allocated as follows:
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| USA | $ | (16,731) | $ | (15,021) | |||||||
| Mexico | (2,291) | (5,111) | |||||||||
| Other countries | 348 | 544 | |||||||||
| Total | $ | (18,674) | $ | (19,588) | |||||||
Income tax expense for the years 2022 and 2021 is allocated as follows:
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Current income tax expense | $ | 719 | $ | 702 | |||||||
| Deferred income tax expense (benefit) | 735 | (242) | |||||||||
| Total income tax expense | $ | 1,454 | $ | 460 | |||||||
The reconciliation between our effective income tax rate and the statutory tax rates were as follows:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| (Loss) before income tax expense | $ | (18,674) | $ | (19,588) | |||||||
| Statutory tax rates | 21% | 21% | |||||||||
| Computed expected income tax benefit | (3,922) | (4,113) | |||||||||
| Increase (decrease) in income taxes resulting from: | |||||||||||
| Change in deferred tax asset valuation allowance | 7,259 | 5,509 | |||||||||
| Non-deductible expenses | 567 | 1,001 | |||||||||
| ERC Credit | (1,003) | — | |||||||||
| Foreign tax rate differential | (140) | (376) | |||||||||
| State and local income taxes, net of federal income tax benefit | 79 | 84 | |||||||||
| Taxable inflation adjustment | (20) | (597) | |||||||||
| Non deductible interest | 265 | 172 | |||||||||
| Effect of change in state rate | — | (4) | |||||||||
| Non-taxable income | (1,530) | (1,229) | |||||||||
| Debt instruments | (156) | — | |||||||||
| Other, net | 55 | 13 | |||||||||
| Reported income tax expense | $ | 1,454 | $ | 460 | |||||||
| Effective tax rate | (7.8)% | 2.3% | |||||||||
The Company has the following tax rates in relevant jurisdictions:
| Tax rates | |||||||||||
| 2022 | 2021 | ||||||||||
| United States | 21% | 21% | |||||||||
| Mexico | 30% | 30% | |||||||||
| Brazil | 34% | 34% | |||||||||
| Argentina | 30% | 30% | |||||||||
110
The components of the Company’s deferred tax balances are as follows:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Deferred tax assets: | |||||||||||
| Tax loss carryforward | $ | 17,166 | $ | 13,425 | |||||||
| Provision for doubtful accounts | 36 | 45 | |||||||||
| Fixed assets | 202 | 218 | |||||||||
| Accrued liabilities and other expenses | 1,851 | 2,434 | |||||||||
| Deferred revenues | 193 | 376 | |||||||||
| Business interest limitation | 9,236 | 4,805 | |||||||||
| Operating lease liability | 1,383 | 1,735 | |||||||||
| Equity-based compensation | 743 | — | |||||||||
| Intangible assets | 89 | 138 | |||||||||
| Other | 1,453 | 1,023 | |||||||||
| Gross deferred tax assets: | 32,352 | 24,199 | |||||||||
| Less: Valuation allowance | (24,349) | (15,612) | |||||||||
| Total deferred tax assets | 8,003 | 8,587 | |||||||||
| Deferred tax liabilities: | |||||||||||
| Intangible assets | 7,251 | 6,838 | |||||||||
| Operating lease ROU assets | 1,661 | 1,695 | |||||||||
| Property and Equipment | 124 | 153 | |||||||||
| Obligation for purchase price | 1,963 | 2,128 | |||||||||
| Other | 631 | 535 | |||||||||
| Total deferred tax liabilities | 11,630 | 11,349 | |||||||||
| Net deferred tax liabilities | $ | (3,627) | $ | (2,762) | |||||||
The change in the total valuation allowance for deferred tax assets is as follows:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Opening balance January 1, | $ | 15,612 | $ | 10,010 | |||||||
| Utilization during the year | — | — | |||||||||
| Increases during the year | 8,737 | 5,602 | |||||||||
Closing balance December 31, | $ | 24,349 | $ | 15,612 | |||||||
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets depends on the generation of future taxable income during the periods in which temporary differences are deductible.
Management considers the scheduled reversal of deferred tax liabilities and projected taxable income in making this assessment. In order to fully realize a deferred tax asset, the Company must generate future taxable income prior to the expiration of the deferred tax asset under applicable law. Based on the level of historical taxable income and projections for future taxable income over the periods during which the Company’s deferred tax assets are deductible, management believes that it is more likely than not that the Company will realize the benefits of these deductible differences, net of the existing valuation allowances as of December 31, 2022. The amount of the Company’s deferred tax assets considered realizable, however, could be reduced in the near term if estimates of future taxable income during the carryforward period are reduced.
As of December 31, 2022, the Company is in a full valuation allowance for its deferred tax assets for which the Company does not have enough evidence to support its realization. The total amount of valuation allowance as of December 31, 2022 is $24.3 million, primarily related to a full valuation allowance on the Company's tax loss
111
carryforwards in Mexico and a valuation allowance against the net deferred tax assets not expected to be utilized by the reversing of deferred income tax liabilities in the U.S.
As of December 31, 2022, the Company has federal, state, and foreign net operating loss carryforwards of approximately $29.6 million, $19.1 million, and $33.1 million, respectively, that expire at various dates through 2042 unless indefinite in nature.
The Company has not accrued any income, distribution or withholding taxes that would arise if the undistributed earnings of the Company’s foreign subsidiaries, which cannot be repatriated in a tax-free manner, were repatriated.
The Company accounts for tax contingencies by assessing all material positions, including all significant uncertain positions, for all tax years that are open to assessment or challenge under tax statutes. Those positions that have only timing consequences are separately analyzed based on the recognition and measurement model.
As required by the uncertain tax position guidance, the Company recognizes the financial statement benefit of a position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the more likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. The Company is subject to income taxes in the U.S. federal jurisdiction, Mexico, and various state and foreign jurisdictions. Tax regulations within each jurisdiction are subject to the interpretation of the related tax laws and regulations and require significant judgment to apply. Under the tax statute of limitations applicable to the Internal Revenue Code, the Company is no longer subject to U.S. federal income tax examinations for years before 2019. Under the statute of limitations applicable to most state income tax laws, the Company is no longer subject to state income tax examinations by tax authorities for years before 2018 in states which the Company has filed income tax returns. Certain states may take the position that the Company is subject to income tax in such states even though the Company has not filed income tax returns in such states, depending on the varying state income tax statutes and administrative practices, the statute of limitations in such states may extend to years before 2018. Under the statute of limitations applicable to our foreign operations, we are generally no longer subject to tax examination for years before 2017 in jurisdictions where we have filed income tax returns. The Company applies the uncertain tax position guidance to all tax positions for which the statute of limitations remains open. The Company’s policy is to classify interest accrued as interest expense and penalties as other (expense) income. As of December 31, 2022 and 2021, the Company did not have any amounts accrued for interest and penalties or recorded for uncertain tax positions.
Note 12 – Net Revenues
Disaggregated revenues by contract type and the timing of revenue recognition are as follows:
| Timing of Revenue Recognition | Year ended December 31, | ||||||||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||||||||
| Time and materials | over time | $ | 125,231 | $ | 130,603 | ||||||||||||
| Fixed price | over time | 51,615 | 28,065 | ||||||||||||||
| Total | $ | 176,846 | $ | 158,668 | |||||||||||||
Liabilities by contract related to contracts with customers
Details of our liabilities related to contracts with customers and related timing of revenue recognition are as follows:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Deferred revenues | $ | 2,151 | $ | 1,789 | |||||||
| Revenue recognized, that was deferred in the previous year | 1,464 | 1,299 | |||||||||
Major Customers
The Company derived 15% and 9% of its revenues for the year ended December 31, 2022 from two significant customers. In addition, 13%, 10%, and 10% of our revenues for 2021 were from three significant customers. Sales to these customers occur at multiple locations and we believe that the loss of these customers would have only a short-term impact
112
on our operating results. There is risk, however, that we would not be able to identify and access a replacement market at comparable margins.
Note 13 – Segment Reporting and Geographic Information
The Company operates as a single operating segment. The Company's chief operating decision maker is the CEO, who reviews financial information presented on a consolidated basis, for purposes of making operating decisions, assessing financial performance and allocating resources.
The following table presents the Company's geographic net revenues based on the geographic market where revenues are accumulated, as determined by customer location:
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| United States | $ | 112,223 | $ | 103,436 | |||||||
Latin America | 64,623 | 55,232 | |||||||||
| Total | $ | 176,846 | $ | 158,668 | |||||||
The following table presents certain of our long-lived assets by geographic area, which includes property and equipment, net and lease right of use assets, net:
| December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| United States | $ | 4,077 | $ | 5,837 | |||||||
| Latin America | 5,629 | 3,704 | |||||||||
| Total long-lived assets | $ | 9,706 | $ | 9,541 | |||||||
Note 14 – Restructuring
Restructuring expenses consist of costs associated with the ongoing reorganization of our business operations and expense re-alignment efforts.
In November 2021, we communicated efforts to streamline our operating model further by reducing layers of management and reducing our cost structure. These restructuring efforts included consolidating the Chief Revenue Officer’s responsibilities with the Chief Operating Officer position, consolidating span of control of sales managers from eight to four, and a reduction of underutilized bench personnel. The Company exited employees in the last half of the three months ended December 31, 2021.
During the first half of 2022 the Company incurred additional restructuring costs related to additional terminations and consolidation of our marketing department. During the remaining half of 2022 the Company consolidated additional roles throughout various back office functions.
The following table summarizes the Company’s restructuring activities included in accrued liabilities:
| Restructuring Liability | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Balance as of January 1 | $ | 552 | $ | 2,939 | |||||||
| Restructuring charges | 1,804 | 911 | |||||||||
| Payments | (1,741) | (3,298) | |||||||||
| Balance as of December 31 | $ | 615 | $ | 552 | |||||||
Note 15 – Warrants
In connection with the Business Combination, each public and private placement warrant of LIVK was assumed by the Company and represents the right to purchase one share of the Company's common stock upon exercise of such warrant. The Company reviewed the accounting for both its public warrants and private warrants and determined that its public warrants should be accounted for as equity while the private warrants should be accounted for as liabilities in the
113
Consolidated Balance Sheets. The fair value of private placement warrants is remeasured quarterly. Refer to Note 4, Fair Value Measurements, for additional information.
As part of LIVK's initial public offering, 8,050,000 public warrants (“Public Warrants”) were sold. The Public Warrants entitle the holder to purchase one share of common stock at a price of $11.50 per share. Public Warrants may only be exercised for a whole number of shares. No fractional shares will be issued upon exercise of the Public Warrants. The Public Warrants became exercisable when the Company completed an effective registration statement. The Public Warrants will expire five years from the completion of a Business Combination or earlier upon redemption or liquidation.
Following the closing of the merger between LIV Capital and AgileThought and the filing of the registration statement, the Company has one single class of voting common stock (Class A shares) and as such the Company would not be precluded from classifying the public warrants as equity as those warrants are indexed to the Company’s own stock and a net cash settlement could only be triggered in circumstances in which the holders of the shares underlying the contract (Class A shares) would also receive cash.
Additionally, LIVK consummated a private placement of 2,811,250 warrants (“Private Placement Warrants”). The Private Placement Warrants entitle the holder to purchase one share of common stock at a price of $11.50 per share. The Private Placement Warrants are identical to the Public Warrants, except that the Private Placement Warrants and the common stock issuable upon the exercise of the Private Placement Warrants were not be transferable, assignable or salable until 30 days after the completion of a Business Combination. Additionally, the Private Placement Warrants are exercisable on a cashless basis and are non-redeemable so long as they are held by the initial purchasers or their permitted transferees. If the Private Placement Warrants are held by someone other than the initial purchasers or their permitted transferees, the Private Placement Warrants are redeemable by the Company and exercisable by such holders on the same basis as the Public Warrants.
The Company will not be obligated to deliver any common stock pursuant to the exercise of a Public Warrant and will have no obligation to settle such Public Warrant exercise unless a registration statement under the Securities Act covering the issuance of the common stock issuable upon exercise of the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company satisfying its obligations with respect to registration. The Company filed a Form S-1 to register the shares issuable upon exercise of the Public Warrants which was declared effective on September 27, 2021. No Public Warrant will be exercisable for cash or on a cashless basis, and the Company will not be obligated to issue any shares to holders seeking to exercise their Public Warrants, unless the issuance of the shares upon such exercise is registered or qualified under the securities laws of the state of the exercising holder, or an exemption from registration is available.
Once the warrants become exercisable, the Company may redeem the Public Warrants:
•in whole and not in part;
•at a price of $0.01 per warrant;
•upon not less than 30 days’ prior written notice of redemption to each warrant holder and if, and only if, the reported last sale price of the common stock equals or exceeds $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations), for any 20 trading days within a 30 trading day period commencing after the warrants become exercisable and ending on the third business day prior to the notice of redemption to warrant holders; and
•if, and only if, there is a current registration statement in effect with respect to the common stock underlying such warrants.
If and when the Public Warrants become redeemable by the Company, the Company may exercise its redemption right even if it is unable to register or qualify the underlying securities for sale under all applicable state securities laws.
If the Company calls the Public Warrants for redemption, management will have the option to require all holders that wish to exercise the Public Warrants to do so on a “cashless basis,” as described in the warrant agreement. The exercise price and number of ordinary shares issuable upon exercise of the Public Warrants may be adjusted in certain circumstances including in the event of a share dividend, extraordinary dividend or recapitalization, reorganization, merger or consolidation. However, the Public Warrants will not be adjusted for issuances of ordinary shares at a price below its exercise price. Additionally, in no event will the Company be required to net cash settle the Public Warrants.
114
As of December 31, 2022, there were 8,049,980 public warrants and 2,811,250 private placement warrants outstanding.
Note 16 – Stockholders’ Equity
As a result of the Business Combination, the Company authorized two classes of common stock: common stock and preferred stock.
Common Stock
As of December 31, 2022, the Company has 210,000,000 shares of common stock authorized, and 48,402,534 shares issued. common stock has par value of $0.0001 per share. Holders of common stock are entitled to one vote per share.
On December 21, 2021, AgileThought, Inc. entered into an underwriting agreement with A.G.P./Alliance Global Partners as representatives of the underwriters (the “Underwriters”), relating to the sale and issuance of 3,560,710 shares of the Company’s common stock. The offering price to the public of the shares is $7.00 per share, and the Underwriters have agreed to purchase the shares from the Company pursuant to the underwriting agreement at a price of $6.51 per share. The Company’s net proceeds from the offering are approximately $21.8 million.
On December 27, 2021, the Company issued 461,236 shares of common stock (the “Conversion Shares”) to Mr. Senderos and Mr. Johnston upon conversion of their loans under the Second Lien Facility in the amount of $4,500,000 and $200,000, respectively. Mr. Senderos received 441,409 Conversion Shares, and Mr. Johnston received 19,827 Conversion Shares.
On December 28, 2021, the Company issued 4,439,333 shares of common stock to the administrative agent for the First Lien Facility in accordance with the amendment dated November 15, 2021. As these common shares have been issued to and are held by the lender, and are contingently returnable to the Company under certain conditions, such shares are considered as issued and outstanding on the Company’s balance sheet, but are not included in earnings per share calculations for all periods presented. On June 3, 2022, the lenders returned 2,423,204 shares as part of the extinguishment of the First Lien Facility. See Note 9, Long-Term Debt, for further information.
For the twelve months ended December 31, 2022, the Company issued 4,673,681 Restricted Stock Units (“RSU”) to senior employees and directors under the 2021 Equity Incentive Plan, of which 1,597,731 are subject to a service vesting condition and 3,075,950 RSUs are subject to a market vesting requirement. See Note 18, Equity-Based Arrangements, for further information.
Preferred Stock
Under the Company's certificate of incorporation, the Company is authorized to issue 10,000,000 shares of preferred stock having par value of $0.0001 per share. The Company's Board of Directors has the authority to issue shares of preferred stock in one or more series and to determine preferences, privileges, and restrictions, including voting rights, of those shares. As of December 31, 2022, no preferred stock shares were issued and outstanding.
Prior to the Business Combination, the Company had three classes of equity: Class A ordinary shares, Class B ordinary shares and redeemable convertible preferred stock.
Legacy Class A and Class B Shares
As of December 31, 2020, the capital stock is represented by 431,682 Class A Shares and 37,538 Class B Shares. Holders of Class A Shares were entitled to one vote per share and Holders of Class B Shares are not entitled to vote. The common shares have no preemptive, subscription, redemption or conversion rights. In connection with the Business Combination, the Company converted it's Class A and Class B ordinary shares outstanding into shares of the Company's common stock. As of December 31, 2022, no shares of Class A and Class B ordinary shares were outstanding.
Redeemable Convertible Preferred Stock
On February 2, 2021, LIV Capital Acquisition Corp (“LIVK”), related parties to LIVK (and together with LIVK, the “Equity Investors”) and the Company entered into an equity contribution agreement. Per the agreement, the Equity Investors purchased 2,000,000 shares of a newly created class of preferred stock at a purchase price of $10.00 per share for an aggregate purchase price of $20 million.
115
The redeemable convertible preferred stock would be redeemable for an amount in cash equal to the greater of $15.00 per share (the “Required Price”), or $10.00 per share of redeemable convertible preferred stock plus 18% interest if the Business Combination did not occur (defined in the agreement as the “Required Return”), other than as a result of LIVK’s failure to negotiate in good faith or failure to satisfy or perform any of its obligations under the merger agreement.
Additionally, the redeemable convertible preferred stock would be convertible into common shares of the Company either on a one to one basis in the event of the closing of the merger agreement, or if the merger agreement were terminated and the Company subsequently consummated an initial public offering, into a number of common shares of the Company equal to the Required Return divided by 0.9, or $16.6667, multiplied by the price at which the shares of voting common stock of the Company are initially priced in such initial public offering.
The redeemable convertible preferred stock had no voting and dividend rights until converted into common stock and had a liquidation preference equal to the amount of the Required Return.
The Company concluded that because the redemption and conversion features of the Preferred Stock were outside of the control of the Company, the instrument was recorded as temporary or mezzanine equity in accordance with the provisions of Accounting Series Release No. 268, Presentation in Financial Statements of Redeemable Preferred Stocks.
In connection with the Business Combination, all redeemable convertible preferred stock was converted into shares of common stock on a one for one basis. As of December 31, 2022, no shares of redeemable convertible preferred stock were outstanding.
Note 17 – Loss Per Share
The following table sets forth the computation of basic and diluted net loss per share attributable to common stockholders:
Year Ended December 31, | |||||||||||
(in thousands USD, except share and loss per share data) | 2022 | 2021 | |||||||||
Net loss attributable to common stockholders - basic and diluted | $ | (20,180) | $ | (20,070) | |||||||
Weighted average number of common stock - basic and diluted | 46,127,083 | 37,331,820 | |||||||||
| Net loss per common stock - basic and diluted | $ | (0.44) | $ | (0.54) | |||||||
As of December 31, 2022 and December 31, 2021, the Company’s potentially dilutive securities were private and public warrants, and granted but unvested stock awards which have been excluded from diluted loss per share because the conditions for issuance of common shares had not been met at the balance sheet date. The potential shares of common stock that were antidilutive are as follows:
| December 31, | |||||||||||
| 2022 | 2021 | ||||||||||
| Public and private warrants | 10,861,230 | 10,861,250 | |||||||||
Common stock held by administrative agent with restricted resale rights | 2,016,129 | 4,439,333 | |||||||||
| Unvested 2021 Plan awards for common stock with a service condition | 899,210 | — | |||||||||
| Unvested 2021 Plan awards for common stock with a market condition | 3,001,774 | — | |||||||||
Note 18 – Equity-based Arrangements
The Company has granted various equity-based awards to its employees and board members as described below. The Company issues, authorized but unissued shares, for the settlement of equity-based awards.
2021 Equity Incentive Plan
In connection with the Business Combination, on August 18, 2021, the Company adopted the 2021 Equity Incentive Plan (the “2021 Plan”) on August 18, 2021, which became effective immediately upon the Closing. The 2021 Plan provides the Company with flexibility to use various equity-based incentive awards as compensation tools to motivate and retain the Company’s workforce. The Company initially reserved 5,283,216 shares of common stock for the issuance of
116
awards under the 2021 Equity Plan. The number of shares of common stock available for issuance under the 2021 Plan automatically increases on the first day of each calendar year, beginning January 1, 2022 and ending on and including January 1, 2031, in an amount equal to 5% of the total number of shares of common stock outstanding on December 31 of the preceding year; provided that the Board may act prior to January 1 of a given year to provide that the increase of such year will be a lesser amount of shares of common stock.
Service Condition Awards
The Company issues awards subject to a service vesting requirement to employees and directors that will vest on a ratable basis over a period of 1-5 years. The fair value of service condition award is determined on the closing stock price of the grant date of the award and is amortized on a straight line basis over the vesting period of the award.
The Company recorded the following compensation costs related to service condition awards for the years ended December 31, 2022 and 2021.
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Service Condition Awards - Expense | $ | 4,081 | $ | — | |||||||
As of December 31, 2022, there was $2.5 million of total unrecognized compensation cost related to unvested service condition awards that is expected to be recognized over a weighted-average period of 1.6 years.
The following table summarizes the service condition awards activity for the years 2022, and provides information for service condition awards outstanding at December 31 of each year:
| 2022 | |||||||||||
| Number of Awards | Weighted Average Fair Value | ||||||||||
| Unvested shares at January 1 | — | $ | — | ||||||||
| Granted | 1,597,731 | $ | 4.45 | ||||||||
| Vested | (536,310) | $ | 2.74 | ||||||||
| Forfeited | (162,211) | $ | 4.51 | ||||||||
| Unvested shares at December 31 | 899,210 | $ | 4.46 | ||||||||
The fair value of the grants and vested awards for 2022 was $7.1 million and $2.4 million, respectively.
Market Condition Awards
The Company issues awards subject to a market condition vesting requirement to employees and directors that will vest if the volume-weighted average stock price reaches the specified stock price during the specified period. The awards subject to a market vesting condition will expire after 5-10 years. The fair value of the market condition awards are determined based on the closing stock price as of the grant date and input into a Monte Carlo simulation to project future stock prices. The estimated fair value is amortized on a straight line basis over the derived service period of the award. The
117
derived service period represents the expected time to reach the stock price targets as output by the Monte Carlo Simulation. The market condition awards have a derived service period of 1-7 years.
The Company recorded the following compensation costs related to market condition awards for the years ended December 31, 2022 and 2021.
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Market Condition Awards - Expense | $ | 1,690 | $ | — | |||||||
As of December 31, 2021, there was $5.5 million of total unrecognized compensation cost related to unvested market condition awards that is expected to be recognized over a weighted-average derived service period of 3.1 years.
The following table summarizes the market condition awards activity for the year 2022, and provides information for market condition awards outstanding at December 31 of each year:
| 2022 | |||||||||||
| Number of Awards | Weighted Average Fair Value | ||||||||||
| Unvested shares at January 1 | — | $ | — | ||||||||
| Granted | 3,075,950 | $ | 2.50 | ||||||||
| Vested | — | $ | — | ||||||||
| Forfeited | (74,176) | $ | 2.97 | ||||||||
| Unvested shares at December 31 | 3,001,774 | $ | 2.49 | ||||||||
The fair value of the awards granted for 2022 was $7.4 million. No market condition awards were vested in 2022.
Employee Stock Purchase Plan
In connection with the Business Combination, on August 18, 2021, the Company adopted the 2021 Employee Stock Purchase Plan (the “ESPP”) for the issuance of up to a total of 1,056,643 shares of common stock. The number of shares reserved for issuance will automatically increase on January 1 of each calendar year, from January 1, 2022 through January 1, 2031, by the lesser of (i) 1% of the total number of shares of our capital stock outstanding on December 31 of the preceding calendar year, and (ii) the number of shares equal to 200% of the initial share reserve, unless a smaller number of shares may be determined by the Board. The purchase price of common stock will be 85% of the lesser of the fair market value of common stock on the first trading date or on the date of purchase. No purchases have been made under the ESPP during the year ended December 31, 2022.
2020 Equity Plan
On May 9, 2021, the Company announced the acceleration of 1,372 performance-based RSUs that the Board previously granted which covered shares of the Company’s common stock pursuant to the Company’s 2020 Equity Plan. The liquidity requirement of the accelerated of RSU's was removed per the Board approval on August 19, 2021. The acceleration of RSUs became effective immediately prior to the Business Combination. During the year ended December 31, 2021, the Company recognized $1.0 million of equity-based compensation expense related to acceleration of RSUs pursuant to the 2020 Equity Plan.
On May 9, 2021 and August 16, 2021, the Company entered into RSU cancellation agreements with existing shareholders, cancelling a total of 4,921 RSUs. The RSU cancellation agreements were effective immediately prior to the Business Combination. Additionally, the remaining 1,472 RSUs were forfeited.
Additionally, during the year ended December 31, 2021, the Company granted additional fully vested stock awards pursuant to the 2020 Equity Incentive Plan to replace the cancelled 2018 and 2017 awards under the AgileThought Inc.
118
Management and AN Management Stock Compensation Plan respectively. The compensation expense related to this award recognized during the year ended December 31, 2021 was $5.5 million.
AgileThought, LLC PIP
In connection with the AgileThought, LLC acquisition in July 2019, the Company offered a performance incentive plan (“AT PIP”) to key AgileThought, LLC employees. Pursuant to the AT PIP, participants may receive up to an aggregate of 3,150 Class A shares based on the achievement of certain EBITDA -based performance metrics during each of the fiscal years as follows: up to 1,050 shares for 2020, up to 1,050 shares for 2021, and up to 1,050 shares for 2022. The EBITDA-based performance metrics were not met in 2022, 2021, or 2020.
Participants do not begin to vest in the performance share units (“PSUs”) granted under the AT PIP until January 1, 2020. In order to qualify for payment, the Participant: (a) has to be actively employed by the Company or one of its affiliates, and (b) has to not have breached any of his or her noncompetition covenants in the definitive documents. During the year ended December 31, 2021, the Company did not recognize any equity-based compensation expense related to this plan as performance metrics for 2022 were not probable of being achieved. The grant date fair value for the PSUs under the AT PIP was approximately $1.2 million.
AgileThought Inc. Management Performance Share Plan
In 2018, the Company adopted the Management Performance Share Plan, which provides for the issuance of PSUs. These awards representing an aggregate of 1,232 Class A shares vest upon the occurrence of a liquidity event, attainment of certain performance metrics and service-based vesting criteria. On May 9, 2021 and August 16, 2021, the Company entered into RSU cancellation agreements with existing shareholders, cancelling a total of 1,232 RSUs pursuant to the 2018 AN Management Compensation Plan. The RSU cancellation agreements were effective immediately prior to the Business Combination and replaced with awards issued under the 2020 Equity Plan.
2017 AN Management Stock Compensation Plan
On May 9, 2021 and August 16, 2021, the Company entered into RSU cancellation agreements with existing shareholders, cancelling a total of 1,880 RSUs pursuant to the 2017 AN Management Compensation Plan. The RSU cancellation agreements were effective immediately prior to the Business Combination and replaced with awards issued under the 2020 Equity Plan.
Note 19 – Commitments and Contingencies
The Company is, from time to time, involved in certain legal proceedings, inquiries, claims and disputes, which arise in the ordinary course of business. Although management cannot predict the outcomes of these matters, management does not believe these actions will have a material, adverse effect on the Company’s consolidated balance sheets, consolidated statements of operations or consolidated statements of cash flows. As of December 31, 2022 and 2021, the Company had labor lawsuits in process, whose resolution is pending. As of December 31, 2022 and 2021, the Company has recorded liabilities for labor lawsuits and/or litigation of $0.6 million and $1.4 million for 2022 and 2021, respectively.
As part of the amendment entered into on November 15, 2021, the Company agreed to issue warrants to the administrative agent to purchase $7 million worth of AgileThought’s common stock for nominal consideration. The warrants will be issued on the date that all amounts under the First Lien Facility have been paid in full.
119
Note 20 – Supplemental Cash Flows
The following table provides detail of non-cash activity and cash flow information:
Year ended December 31, | |||||||||||
| (in thousands USD) | 2022 | 2021 | |||||||||
| Supplemental disclosure of non-cash investing activities & cash flow information | |||||||||||
| Assumption of merger warrants liability | $ | — | $ | 15,123 | |||||||
Right-of-use assets obtained in exchange for operating lease liabilities | 3,159 | 1,573 | |||||||||
| Forgiveness of loans | 7,280 | 1,306 | |||||||||
| Cash paid during the year for interest | 4,990 | 7,864 | |||||||||
| Cash paid during the year for income tax | 1,203 | 2,025 | |||||||||
| Fees due to creditor | — | 6,900 | |||||||||
| Convertible notes exchanged for common stock | — | 4,700 | |||||||||
Note 21 – Subsequent Events
Management has evaluated all subsequent events until March 13, 2023, when the consolidated financial statements were issued. Accordingly, where applicable, the notes to these consolidated financial statements have been updated and adjustments to the Company's consolidated financial statements have been reflected.
120
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosures
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act), that are designed to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the commission’s rules and forms.
Disclosure controls and procedures include, without limitation, controls and procedures designed to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure.
Based on the evaluation of our disclosure controls and procedures, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of December 31, 2022.
Management’s Report on Internal Control Over Financial Reporting
As a publicly traded company, we are required to comply with the SEC's rules implementing Section 302 and 404 of the Sarbanes-Oxley Act, which require management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of controls over financial reporting.
An evaluation was conducted under the supervision and with the participation of management, including our Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”), of the effectiveness of our internal control over financial reporting based on the Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework).
Based on the results of this evaluation, our management concluded that our internal control over financial reporting was effective as of December 31, 2022.
Changes in Internal Control Over Financial Reporting
During the quarter ended December 31, 2022, management remediated a material weakness in internal control over financial reporting related to the proper accounting for complex financial instruments. Misstatements arose as a result of this deficiency. For the year ended December 31, 2022, management remediated the material weakness by completing training, enhancing accounting personnel’s understanding of complex convertible debt instruments, and adding controls over the review of the accounting assessment for complex financial instruments.
Additionally, during the quarter ended December 31, 2022, management remediated a material weakness in internal control over financial reporting related to proper application of revenue recognition related to our Latin America business. For the year ended December 31, 2022, management remediated the material weakness redesigning the respective control framework, including implementation of enhanced control procedures. Prior to the issuance of this Annual Report on Form 10-K, we successfully completed the testing of these enhanced controls and concluded that the material weaknesses have been remediated as of December 31, 2022. The Company will continue to monitor these new controls and implement additional enhancements in 2023.
Except for the foregoing, there were no changes in internal control over financial reporting during the quarter ended December 31, 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations on Effectiveness of Controls
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent all errors and all fraud. A
121
control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of a simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people or by management override of the controls. The design of any system of controls is also based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, controls may become inadequate because of changes in conditions, or the degree of compliance with policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
Item 9B. Other Information
Amendment with First Lien Lenders
On March 7, 2023, the Company entered into a waiver and amendment to revise significant terms of the financing agreement (the “Blue Torch Credit Facility”) by and among the Company, AN Global LLC, certain subsidiaries of the Company, as guarantors, the financial institutions party thereto as lenders, and Blue Torch Finance LLC, as the administrative agent and collateral agent. The amendment was required as a result of defaults of certain financial and other covenants under the Blue Torch Credit Facility existing as of, and subsequent to, December 31, 2022. Pursuant to the amendment, the Company agreed to repay principal payments of $15.0 million by April 15, 2023, $20.0 million by June 15, 2023 (inclusive of the $15.0 million by April 15, 2023 if not paid by then) and $25.0 million by September 15, 2023 (inclusive of the $20.0 million by June 15, 2023 if not paid by then) to the Blue Torch Lenders. If the Company fails to repay the respective aggregate principal amounts on or prior to their due dates, a failed payment fee equal to $4.0 million, $2.0 million and $3.0 million, respectively, will be paid in kind by adding such fee to the outstanding principal of the term loan. Failure to make these payments would constitute an event of default but will not result in the ability of the administrative agent to accelerate indebtedness under the Blue Torch Credit Facility. If the Company meets these payments timely, no fees will be incurred. Thereafter, the Company will make quarterly payments on the term loan of approximately $0.7 million starting December 31, 2023. The amendment granted a waiver for prior and existing defaults, reset the liquidity and leverage ratio covenants for future periods and added an EBITDA covenant that will become effective if the Company fails to make the $15 million payment on or prior to April 15, 2023. The amendment also revised the maturity date of from May 27, 2026 to January 1, 2025, revised the interest provisions to remove the step-down in interest rate based on the Company’s total leverage ratio and required the Company to engage both a financial advisor to support the Company’s capital raising needs and an operational advisor to conduct a formal assessment of the Company’s financial performance. In connection with the waiver and amendment, the Company agreed to pay the administrative agent a fee equal to $6.0 million, which was paid in kind by adding such capitalized amount to the outstanding principal of the term loan.
Amendment with Second Lien Lenders
On March 7, 2023, in connection with the waiver and amendment to the Blue Torch Credit Facility, the Company entered into a waiver and amendment to revise significant terms of the credit agreement (the “Second Lien Facility”), by and among AT, AN Extend, S.A. de C.V., AN Global LLC, certain other loan parties party thereto, financial institutions affiliated with Credit Suisse and Nexxus Capital, Manuel Senderos and Kevin Johnston, as lenders, GLAS USA LLC, as administrative agent, and GLAS Americas LLC, as collateral agent. The amendment revised the maturity date of the Credit Suisse loans from September 15, 2026 to July 1, 2025 and also provided for the covenants and certain other provisions of the Second Lien Facility to be consistent with those in the Blue Torch Credit Facility, as amended.
Refer to Management's Discussion and Analysis - Liquidity and Capital Resources for further information.
Item 9C. Disclosure Regarding Foreign Jurisdictions That Prevent Inspections
Not applicable.
122
PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this item is incorporated herein by reference from the Company’s definitive Proxy Statement related to its 2022 Annual Meeting of Stockholders, which will be filed with the SEC no later than 120 days after the end of the Company’s fiscal year on December 31, 2022 (the “Proxy Statement”).
Item 11. Executive Compensation
The information required by this item is incorporated herein by reference from the Proxy Statement.
Item 12. Security Ownership of Certain Beneficial Owner and Management and Related Stockholder Matters
The information required by this item is incorporated herein by reference from the Proxy Statement.
Securities Authorized for Issuance Under Equity Compensation Plans
| Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants, and Rights | Weighted-Average Exercise Price of Outstanding Options, Warrants, and Rights | Number of Securities Available for Future Issuance Under Equity Compensation Plans2 | ||||||||||||||||||
Equity compensation plans approved by security holders1 | — | — | 9,364,024 | |||||||||||||||||
1 - Consists of the 2021 Equity Incentive Plan and and the 2021 Employee Stock Purchase Plan (“ESPP”).
2 - The number of shares authorized under our 2021 Equity Incentive Plan will increase on the first day of each calendar year beginning on January 1, 2022 and ending on and including January 1, 2031, by an amount in an amount equal to five percent (5%) of the total number of shares of the Company’s Capital Stock outstanding on December 31 of the preceding year; provided, however that the Board may act prior to January 1st of a given year to provide that the increase for such year will be a lesser number of shares of Common Stock. The number of shares authorized under our ESPP will increase on the first day of each calendar year beginning on January 1, 2022 and ending on and including January 1, 2031, in an amount equal to the lesser of (x) one percent (1%) of the total number of shares of Capital Stock outstanding on December 31st of the preceding calendar year, and (y) 2,113,286 shares of Common Stock (equal to two hundred percent (200%) of the Initial Share Reserve). Notwithstanding the foregoing, the Board may act prior to the first day of any calendar year to provide that there will be no January 1st increase in the share reserve for such calendar year or that the increase in the share reserve for such calendar year will be a lesser number of shares of Common Stock than would otherwise occur pursuant to the preceding sentence.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this item is incorporated herein by reference from the Proxy Statement.
Item 14. Principal Accounting Fees and Services
The information required by this item is incorporated herein by reference from the Proxy Statement.
123
PART IV
Item 15. Exhibits, Financial Statement Schedules
(a) The following documents are filed as part of, or incorporated by reference into, this Annual Report on Form 10-K:
1.Financial Statements: See Item 8 of this Annual Report on Form 10-K.
2.Financial Statement Schedules: All schedules are omitted because they are not required, are not applicable or the information is included in the consolidated financial statements or notes thereto.
(b) The following exhibits are filed as part of, or incorporated by reference into, this Annual Report on Form 10-K:
| Exhibit Number | Description | |||||||
| 2.1+ | ||||||||
| 3.1 | ||||||||
| 3.2 | ||||||||
| 4.1 | ||||||||
| 4.2 | ||||||||
| 4.3 | ||||||||
| 4.4 | ||||||||
| 4.5* | ||||||||
| 4.6 | ||||||||
| 4.7 | ||||||||
| 4.8* | ||||||||
| 4.9* | ||||||||
| 4.10* | ||||||||
| 4.11* | ||||||||
| 10.1 | ||||||||
| 10.2 | ||||||||
| 10.3 | ||||||||
| 10.4 | ||||||||
| 10.5# | ||||||||
| 10.6# | ||||||||
124
| 10.7# | ||||||||
| 10.8# | ||||||||
| 10.9# | ||||||||
| 10.10 | ||||||||
| 10.10.1* | ||||||||
| 10.11 | ||||||||
| 10.12 | ||||||||
| 10.13 | ||||||||
| 10.14 | ||||||||
| 10.15 | ||||||||
| 10.16 | ||||||||
| 10.17+ | ||||||||
| 10.17.1+ | ||||||||
| 10.17.2+ | ||||||||
| 10.17.3+ | ||||||||
| 10.17.4+ | ||||||||
| 10.17.5+ | ||||||||
| 10.17.6+ | ||||||||
125
| 10.17.7+ | ||||||||
| 10.17.8+ | ||||||||
| 10.17.9+ | ||||||||
| 10.17.10+ | ||||||||
| 10.17.11+ | ||||||||
| 10.17.12+ | ||||||||
| 10.18+ | ||||||||
| 10.18.1+ | ||||||||
| 10.18.2+ | ||||||||
| 10.18.3+ | ||||||||
| 10.18.4+ | ||||||||
| 10.18.5 | ||||||||
| 10.19+ | ||||||||
| 10.20+ | ||||||||
126
127
| 10.32.1+ | ||||||||
| 10.32.2+ | ||||||||
| 10.32.3+* | ||||||||
| 10.32.4+* | ||||||||
| 10.32.5+* | ||||||||
| 10.33 | ||||||||
| 10.34+# | ||||||||
| 10.35* | ||||||||
| 21.1* | ||||||||
| 23.1* | ||||||||
| 31.1* | ||||||||
| 31.2* | ||||||||
| 32.1** | ||||||||
| 32.2** | ||||||||
| 101.INS* | XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. | |||||||
| 101.SCH* | XBRL Taxonomy Extension Schema Document | |||||||
| 101.CAL* | XBRL Taxonomy Extension Calculation Linkbase Document | |||||||
| 101.DEF* | XBRL Taxonomy Extension Definition Linkbase Document | |||||||
| 101.LAB* | XBRL Taxonomy Extension Label Linkbase Document | |||||||
| 101.PRE* | XBRL Taxonomy Extension Presentation Linkbase Document | |||||||
| 104* | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. | |||||||
| + | The schedules and exhibits to this agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request. | |||||||
| # | Indicates management contract or compensatory plan or arrangement. | |||||||
| * | Filed Herewith | |||||||
| ** | Furnished Herewith | |||||||
Item 16. Form 10-K Summary
None.
128
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Dated: March 13, 2023 | AGILETHOUGHT, INC. | |||||||
By: | /s/ Amit Singh | |||||||
Amit Singh | ||||||||
Chief Financial Officer | ||||||||
Pursuant to the requirements of the Securities Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature | Title | Date | ||||||||||||
| /s/ Manuel Senderos Fernández | Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) | March 13, 2023 | ||||||||||||
| Manuel Senderos Fernández | ||||||||||||||
| /s/ Amit Singh | Chief Financial Officer (Principal Financial Officer) | March 13, 2023 | ||||||||||||
| Amit Singh | ||||||||||||||
| /s/ David Molero Santos | Chief Accounting Officer (Principal Accounting Officer) | March 13, 2023 | ||||||||||||
| David Molero Santos | ||||||||||||||
| /s/ Mauricio Garduño González Elizondo | Director | March 13, 2023 | ||||||||||||
| Mauricio Garduño González Elizondo | ||||||||||||||
| /s/ Diego Zavala | Director | March 13, 2023 | ||||||||||||
| Diego Zavala | ||||||||||||||
| /s/ Alexander R. Rossi | Director | March 13, 2023 | ||||||||||||
| Alexander R. Rossi | ||||||||||||||
| /s/ Alejandro Rojas Domene | Director | March 13, 2023 | ||||||||||||
| Alejandro Rojas Domene | ||||||||||||||
| /s/ Mauricio Jorge Rioseco Orihuela | Director | March 13, 2023 | ||||||||||||
| Mauricio Jorge Rioseco Orihuela | ||||||||||||||
| /s/ Arturo José Saval Pérez | Director | March 13, 2023 | ||||||||||||
| Arturo José Saval Pérez | ||||||||||||||
| /s/ Roberto Langenauer Neuman | Director | March 13, 2023 | ||||||||||||
| Roberto Langenauer Neuman | ||||||||||||||
| /s/ Andrés Borrego y Marrón | Director | March 13, 2023 | ||||||||||||
| Andrés Borrego y Marrón | ||||||||||||||
| /s/ Gerardo Benítez Peláez | Director | March 13, 2023 | ||||||||||||
| Gerardo Benítez Peláez | ||||||||||||||
| /s/ Marina Diaz Ibarra | Director | March 13, 2023 | ||||||||||||
| Marina Diaz Ibarra | ||||||||||||||
129