bfi-20231002

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

________________________________________________

FORM 10-Q

________________________________________________

(Mark One)


☒			QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended October 2, 2023


☐			TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from __________ to __________

Commission File Number: 001-38417

__________________________________________________

BurgerFi International, Inc.

(Exact name of Registrant as specified in its Charter)

____________________________________________________


Delaware			82-2418815
(State or other jurisdiction of incorporation or organization)			(I.R.S. Employer Identification No.)

200 West Cypress Creek Rd., Suite 220 Fort Lauderdale, FL			33309
(Address of principal executive offices)			(Zip Code)

(954) 618-2000

(Registrant’s telephone number, including area code)

(Former name, former address and former fiscal year, if changed since last report)

________________________________________________

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading
Symbol(s)

Name of each exchange on which registered

Common Stock, par value $0.0001 per share

BFI

The Nasdaq Stock Market LLC

Redeemable warrants, each exercisable for one share of common stock at an exercise price of $11.50 per share

BFIIW

The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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

☐

Accelerated filer

☐

Non-accelerated filer

☒

Smaller reporting company

☒

Emerging growth company

☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒

The number of shares of the registrant’s Common Stock outstanding as of November 13, 2023 was 26,829,112

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		Page
Part I Financial Information
Item 1.	Financial Statements	1
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	24
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	37
Item 4.	Controls and Procedures	38
Part II Other Information
Item 1.	Legal Proceedings	38
Item 1A.	Risk Factors	38
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	39
Item 5.	Other Information	39
Item 6.	Exhibits	40
Signatures		41

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Forward-Looking and Cautionary Statements

This Quarterly Report on Form 10-Q contains forward-looking statements as defined in the Private Securities Litigation Reform Act of 1995. Forward-looking statements may appear throughout this Quarterly Report on Form 10-Q, including without limitation, the following sections: Part 1, Item 2. “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Forward-looking statements generally can be identified by words such as “anticipates,” “believes,” “estimates,” “expects,” “intends,” “plans,” “predicts,” “projects,” “will be,” “will continue,” “will likely result,” and similar expressions. These forward-looking statements are based on current expectations and assumptions that are subject to risks and uncertainties, which could cause our actual results to differ materially from those reflected in the forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those discussed in our Annual Report on Form 10-K for the year ended January 2, 2023 and this Quarterly Report on Form 10-Q, and in particular, the risks discussed under the caption “Risk Factors” in Item 1A of such reports and those discussed in other documents we file with the Securities and Exchange Commission (the “SEC”). We undertake no obligation to revise or publicly release the results of any revision to these forward-looking statements, except as required by law. Given these risks and uncertainties, readers are cautioned not to place undue reliance on such forward-looking statements.

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Part I. Financial Information.

Item 1. Financial Statements.

BurgerFi International Inc., and Subsidiaries

Consolidated Balance Sheets


	Unaudited
(in thousands, except for per share data)	October 2, 2023		January 2, 2023
Assets
Current Assets
Cash	$	9,746	$	11,917
Accounts receivable, net	1,229		1,926
Inventory	1,376		1,320
Assets held for sale	732		732
Prepaid expenses and other current assets	972		2,564
Total Current Assets	$	14,055	$	18,459
Property & equipment, net	17,987		19,371
Operating right-of-use assets, net	46,070		45,741

Goodwill	31,621		31,621
Intangible assets, net	153,091		160,208
Other assets	1,114		1,380
Total Assets	$	263,938	$	276,780
Liabilities and Stockholders' Equity
Current Liabilities
Accounts payable - trade and other	$	8,216	$	8,464
Accrued expenses	8,179		10,589
Short-term operating lease liability	12,252		9,924
Short-term borrowings, including finance leases	3,539		4,985
Other current liabilities	2,700		6,241
Total Current Liabilities	$	34,886	$	40,203
Non-Current Liabilities
Long-term borrowings, including finance leases	49,396		53,794
Redeemable preferred stock, $0.0001 par value, 10,000,000 shares authorized, 2,120,000 shares issued and outstanding as of October 2, 2023 and January 2, 2023, $53 million principal redemption value, respectively	54,545		51,418
Long-term operating lease liability	40,672		40,748
Related party note payable	14,450		9,235
Deferred income taxes	1,223		1,223
Other non-current liabilities	1,120		1,212
Total Liabilities	$	196,292	$	197,833
Commitments and Contingencies - Note 8
Stockholders' Equity
Common stock, $ 0.0001 par value, 100,000,000 shares authorized, 26,805,474, and 22,257,772 shares issued and outstanding as of October 2, 2023 and January 2, 2023, respectively	2		2
Additional paid-in capital	314,905		306,096
Accumulated deficit	(247,261)		(227,151)
Total Stockholders' Equity	$	67,646	$	78,947
Total Liabilities and Stockholders' Equity	$	263,938	$	276,780

See accompanying notes to consolidated financial statements.

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BurgerFi International Inc., and Subsidiaries

Consolidated Statements of Operations

(Unaudited)


	Quarter Ended				Nine Months Ended
(in thousands, except for per share data)	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022
Revenue
Restaurant sales	$	37,324	$	40,361	$	121,448	124,954
Royalty and other fees	1,698		2,465		5,858		7,179
Royalty - brand development and co-op	458		429		1,328		1,351

Total Revenue	$	39,480	$	43,255	$	128,634	$	133,484
Restaurant level operating expenses:
Food, beverage and paper costs	9,947		11,665		32,329		37,017
Labor and related expenses	11,853		12,217		37,769		37,126
Other operating expenses	7,199		7,464		22,415		22,077
Occupancy and related expenses	3,933		3,848		11,697		11,575
General and administrative expenses	4,638		5,511		17,027		18,943
Depreciation and amortization expense	3,272		4,253		9,794		13,427
Share-based compensation expense	172		1,010		5,401		9,295
Brand development, co-op and advertising expenses	999		1,159		3,028		2,998
Restructuring costs and other charges, net	515		568		2,688		1,608
Goodwill and intangible asset impairment	—		—		—		55,168



Total Operating Expenses	$	42,528	$	47,695	$	142,148	$	209,234
Operating Loss	(3,048)		(4,440)		(13,514)		(75,750)
Interest expense, net	(2,219)		(2,245)		(6,508)		(6,562)
Gain (Loss) on change in value of warrant liability	224		726		(167)		2,050

Other income, net	85		2,627		81		2,546
Loss before income taxes	$	(4,958)	$	(3,332)	$	(20,108)	$	(77,716)
Income tax (expense) benefit	—		—		(2)		447
Net loss	$	(4,958)	$	(3,332)	$	(20,110)	$	(77,269)
Weighted average common shares outstanding:
Basic and Diluted	26,793,358		22,253,232		25,078,410		22,146,258


Net loss per common share:
Basic and Diluted	$	(0.19)	$	(0.15)	$	(0.80)	$	(3.49)

See accompanying notes to consolidated financial statements.

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BurgerFi International Inc., and Subsidiaries

Consolidated Statements of Changes in Stockholders’ Equity

(Unaudited)



	Common Stock			Additional Paid-in Capital		Accumulated Deficit		Total
(in thousands, except for share data)	Shares	Amount
Balance as of June 30, 2022	22,253,232	$	2	$	304,191	$	(197,656)	$	106,537
Share-based compensation	—	—		1,010		—		1,010
Vested shares issued	—	—		—		—		—
Shares issued in acquisition of Anthony's*	—	—		—		—		—
Shares withheld for taxes	—	—		—		—		—
Net income	—	—		—		(3,332)		(3,332)
Balance as of October 3, 2022	22,253,232	$	2	$	305,201	$	(200,988)	$	104,215


	Common Stock			Additional Paid-in Capital		Accumulated Deficit		Total
(in thousands, except for share data)	Shares	Amount
Balance as of July 3, 2023	26,724,218	$	2	$	314,749	(242,303)		$	72,448
Shares issued in private placement	—	—		—		—		—
Share-based compensation	—	—		172		—		172
Vested shares issued	81,256	—		—		—		—
Shares issued in legal settlement	—	—		—		—		—
Shares withheld for taxes	—	—		(16)		—		(16)
Net loss	—	—		—		(4,958)		(4,958)
Balance as of October 2, 2023	26,805,474	$	2	$	314,905	$	(247,261)	$	67,646


	Common Stock			Additional Paid-in Capital		Accumulated Deficit		Total
(in thousands, except for share data)	Shares	Amount
Balance as of December 31, 2021	21,303,500	$	2	$	296,992	$	(123,719)	$	173,275
Share-based compensation	—	—		5,485		—		5,485
Shares issued for share-based compensation	965,676	—		3,810		—		3,810
Shares issued in acquisition of Anthony's*	123,131	—		—		—		—
Shares withheld for taxes	(139,075)	—		(1,086)		—		(1,086)
Net income	—	—		—		(77,269)		(77,269)
Balance as of October 3, 2022	22,253,232	$	2	$	305,201	$	(200,988)	$	104,215


	Common Stock			Additional Paid-in Capital		Accumulated Deficit		Total
(in thousands, except for share data)	Shares	Amount
Balance as of January 2, 2023	22,257,772	$	2	$	306,096	$	(227,151)	$	78,947
Shares issued in private placement	2,868,853	—		3,436		—		3,436
Share-based compensation	—	—		5,401		—		5,401
Vested share issued	1,762,313	—		—		—		—
Shares issued in legal settlement	200,000	—		352		—		352
Shares withheld for taxes	(283,464)	—		(380)		—		(380)
Net loss	—	—		—		(20,110)		(20,110)
Balance as of October 2, 2023	26,805,474	$	2	$	314,905	$	(247,261)	$	67,646

*Timing of share issuance differs from recognition of related financial statement dollar amounts.

See accompanying notes to consolidated financial statements.

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BurgerFi International Inc., and Subsidiaries

Consolidated Statements of Cash Flows

(Unaudited)


	Nine Months Ended
(in thousands)	October 2, 2023		October 3, 2022
Cash Flows (Used in) Provided by Operating Activities
Net loss	$	(20,110)	$	(77,269)
Adjustments to reconcile net loss income to net cash (used in) provided by operating activities
Goodwill impairment	—		55,168
Recovery of doubtful accounts, net	—		(150)
Depreciation and amortization	9,794		13,427

Share-based compensation	5,401		9,295
Gain on legal settlement, net	(619)		—
Forfeited franchise deposits	(374)		(884)
Non-cash lease cost	(44)		173
Loss (gain) on change in value of warrant liability	167		(2,050)
(Gain) loss on disposal of property and equipment	(96)		720
Deferred income taxes	—		(447)
Other non-cash interest	3,606		3,512
Other, net	2		—
Changes in operating assets and liabilities
Accounts receivable	709		295
Inventory	(34)		70
Prepaid expenses and other assets	1,817		(2,350)
Accounts payable - trade and other	(300)		1,156
Accrued expenses and other current liabilities	(3,206)		2,160
Other long-term liabilities	123		(263)
Cash Flows (Used in) Provided by Operating Activities	$	(3,164)	$	2,563
Net Cash Flows Used In Investing Activities
Purchases of property and equipment	(1,425)		(1,330)
Proceeds from the sale of property and equipment	936		1,025

Other investing activities	—		(117)
Net Cash Flows Used In Investing Activities	$	(489)	$	(422)
Net Cash Flows Provided by (Used In) Financing Activities
Proceeds from issuance of common stock	3,436		—
Payments on borrowings	(6,497)		(2,507)
Proceeds from related party note payable	5,100		—
Proceeds from line of credit	—		1,000
Tax payments for restricted stock upon vesting	(380)		(1,086)
Debt issuance costs	(57)		(164)
Repayments of finance leases	(120)		(132)
Net Cash Flows Provided by (Used in) Financing Activities	$	1,482	$	(2,889)
Net Decrease in Cash and Cash Equivalents	(2,171)		(748)
Cash and Cash Equivalents, beginning of period	11,917		14,889
Cash and Cash Equivalents, end of period	$	9,746	$	14,141

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Supplemental cash flow disclosures:
Cash paid for interest	$	2,562	$	2,180
Fair value of net liabilities assumed in legal settlement	$	(79)	$	—
Fair value of common stock issued in legal settlement	$	352	$	—
ROU assets obtained in the exchange for lease liabilities:
Finance leases	$	466	$	—
Operating leases	$	8,463	$	—

See accompanying notes to consolidated financial statements.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

1. Organization

BurgerFi International, Inc. and its wholly owned subsidiaries (“BurgerFi,” or the “Company,” also “we,” “us,” and “our”), is a multi-brand restaurant company that develops, markets and acquires fast-casual and premium-casual dining restaurant concepts around the world, including corporate-owned stores and franchises located in the United States, Puerto Rico and Saudi Arabia.

As of October 2, 2023, the Company had 169 franchised and corporate-owned restaurants of the two following brands:

BurgerFi. BurgerFi is a fast-casual “better burger” concept with 110 franchised and corporate-owned restaurants as of October 2, 2023, offering burgers, hot dogs, crispy chicken, hand-cut fries, frozen custard and shakes, beer, wine and more.

Anthony’s. Anthony’s is a pizza and wing brand that operated 59 corporate-owned casual restaurant locations, as of October 2, 2023. The concept is centered around a coal-fired oven, and its menu offers “well-done” pizza, coal-fired chicken wings, homemade meatballs, and a variety of handcrafted sandwiches and salads.

Corporate-owned stores and Franchised stores

Store activity for the nine months ended October 2, 2023 and the year ended January 2, 2023 is as follows:


	October 2, 2023			January 2, 2023
	Corporate-owned	Franchised	Total	Corporate-owned	Franchised	Total
Total BurgerFi and Anthony's	85	84	169	85	89	174

BurgerFi stores, beginning of the period	25	89	114	25	93	118
BurgerFi stores opened	—	5	5	3	8	11
BurgerFi stores acquired / (transferred)	2	(2)	—	(3)	3	—
BurgerFi stores closed	(1)	(8)	(9)	—	(15)	(15)
BurgerFi total stores, end of the period	26	84	110	25	89	114

Anthony's stores, beginning of period	60	—	60	61	—	61
Anthony's stores opened	—	—	—	—	—	—
Anthony's stores closed	(1)	—	(1)	(1)	—	(1)
Anthony's total stores, end of the period	59	—	59	60	—	60

Store totals included two international stores at October 2, 2023 and one international store at January 2, 2023.

2. Summary of Significant Accounting Policies

Basis of Presentation

These consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) assuming the Company will continue as a going concern. The going concern assumption contemplates the realization of assets and satisfaction of liabilities in the normal course of business. However, as discussed below and elsewhere through this Quarterly Report on Form 10-Q, substantial doubt about the Company’s ability to continue as a going concern exists. Please see Part I, Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations, as well as Risk Factors in the Company’s Annual Report on Form 10-K for the year ended January 2, 2023 (the “2022 Form 10-K”) and this Quarterly Report on Form 10-Q, for further information.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

The Company’s credit agreement (“Credit Agreement”) with a syndicate of banks has approximately $52.1 million in financing outstanding as of October 2, 2023, and expires on September 30, 2025. The Credit Agreement contains numerous covenants, including those whereby the Company is required to meet certain trailing twelve-month quarterly financial ratios and a minimum liquidity requirement. The Company was in compliance with all of the covenants under the Credit Agreement as of October 2, 2023.

Some of the financial covenants contained within the Credit Agreement require financial performance to improve at a rate faster than we have experienced and at a faster rate than we expect to experience over the next twelve months. As a result, management believes it is probable that the Company will not be in compliance with each of the financial covenants in the Credit Agreement over the next 12 months, which would constitute a breach of the Credit Agreement and an event of default if not cured in accordance with its terms. Any such default would allow the lenders to call the debt sooner than its maturity date of September 30, 2025. In the event that the lenders do call the debt during the next 12 months as the result of a covenant breach, the Company is not forecasted to have the readily available funds to repay the debt, which raises substantial doubt about the Company’s ability to continue as a going concern within one year after the date the consolidated financial statements are issued.

The Company has been and continues to be in communication with its lenders about potential options to address concerns related to meeting the covenant requirements over the next 12 months. Management cannot, however, predict the results of any such negotiations.

The consolidated financial statements do not include any adjustments related to the recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that results from the uncertainty described above.

The accompanying condensed consolidated financial statements are unaudited and have been prepared in accordance with U.S. GAAP for interim financial information and with the instructions for Form 10-Q and Rule 8-03 of Regulation S-X. Pursuant to these rules and regulations, certain information and footnote disclosures normally included in the annual audited consolidated financial statements prepared in accordance with U.S. GAAP have been condensed or omitted. The accompanying condensed consolidated balance sheet as of January 3, 2023 is derived from the Company’s audited financial statements as of that date. Because certain information and footnote disclosures have been condensed or omitted, these condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto as of and for the year ended January 2, 2023 contained in the 2022 Form 10-K.

We are required to evaluate events occurring after October 2, 2023 for recognition and disclosure in the unaudited consolidated financial statements for the quarter and nine month periods ended October 2, 2023. Events are evaluated based on whether they represent information existing as of October 2, 2023, which require recognition, or new events occurring after October 2, 2023 which do not require recognition but require disclosure if the event is significant. We evaluated events occurring subsequent to October 2, 2023 through the date of issuance of these unaudited consolidated financial statements.

On July 28, 2022, our Board of Directors approved the change to a 52-53-week fiscal year ending on the Monday nearest to December 31 of each year in order to improve the alignment of financial and business processes following the acquisition of Anthony’s. Our third fiscal quarter of 2023 ended on October 2, 2023. Our current fiscal year will end on January 1, 2024. As of October 3, 2022, the BurgerFi brand operated on a calendar year-end and the Anthony’s brand operated on a 52-53-week fiscal year. Differences arising from the different fiscal period-ends were not deemed material for the quarter ended October 3, 2022.

Principles of Consolidation

The consolidated financial statements present the consolidated financial position, results from operations and cash flows of BurgerFi International, Inc., and its wholly owned subsidiaries. All material balances and transactions between the entities have been eliminated in consolidation.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

Reclassifications

Certain reclassifications have been made to the prior year presentation to conform to the current year presentation.

Use of Estimates

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingencies at the date of the unaudited consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates.

New Accounting Pronouncements

The Company reviewed all recently issued accounting pronouncements and concluded that they were not applicable or not expected to have a significant impact on the accompanying consolidated financial statements.

Employer Retention Tax Credits

As of October 2, 2023 and January 2, 2023, the Company had $0.1 million and $1.5 million, respectively, of receivables related to the Taxpayer Certainty and Disaster Relief Act of 2020 included in prepaid expenses and other current assets in the accompanying consolidated balance sheets.

Prepaid expenses

The Company routinely issues prepayments to landlords, insurers and vendors in the ordinary course of business. As of October 2, 2023 and January 2, 2023, the Company had $0.8 million and $0.9 million, respectively of prepayments included in prepaid expenses and other current assets in the accompanying consolidated balance sheets.

Assets Held for Sale

In February 2020, the Company entered into an asset purchase agreement with an unrelated third party for the sale of substantially all of the assets used in connection with the operation of BF Dania Beach, LLC. The closing of this transaction has been delayed due to additional on-going negotiations. In the event the transaction is terminated, the Company will begin operating this BurgerFi restaurant, and return the deposit of $0.9 million included in other current assets to the unrelated third-party purchaser. Assets used in the operations of BF Dania Beach, LLC totaling $0.7 million have been classified as held for sale in the accompanying consolidated balance sheets as of October 2, 2023 and January 2, 2023.

During the quarter ended October 2, 2023, the Company recognized $0.1 million in gain on sale of assets in other income, net on our consolidated statements of operations from the sale of a liquor license intangible asset for one of our closed Anthony’s locations with a book value of $0.8 million and classified as assets held for sale in a prior period.

Other Current Liabilities

The Company incurs liabilities associated with the sale of gift cards and gift certificates. As of October 2, 2023 and January 2, 2023, the Company had $0.8 million and $1.8 million, respectively of gift card and gift certificate liabilities included in other current liabilities on the accompanying consolidated balance sheets.

The Company incurs liabilities resulting from its customer loyalty program. As of October 2, 2023 and January 2, 2023, the Company had $0.9 million and $0.8 million, respectively of liabilities for its loyalty program in the accompanying consolidated balance sheets.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

Restructuring Costs

Restructuring costs for the periods shown consist of the following:


	Quarter Ended				Nine Months Ended
(in thousands)	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022
Expenses related to financing	$	70	$	—	$	1,152	$	—
Severance and onboarding costs associated with change in CEO and CFO	282		—		1,244		—
Pre-Opening Costs					—		474
Store Closure Costs	163		568		334		1,134
Lease impairment recovery	—		—		(42)		—
Total	$	515	$	568	$	2,688	$	1,608

3. Property & Equipment

Property and equipment consisted of the following:


(in thousands)	October 2, 2023		January 2, 2023
Leasehold improvements	$	18,242	$	17,029
Kitchen equipment and other equipment	8,622		8,196
Computers and office equipment	1,625		1,468
Furniture and fixtures	2,867		2,677
Vehicles	6		37
	31,362		29,407
Less: Accumulated depreciation and amortization	(13,375)		(10,036)
Property and equipment – net	$	17,987	$	19,371

Depreciation and amortization expense on property and equipment totaled $1.1 million and $3.4 million for the quarter and nine months ended October 2, 2023, respectively. Depreciation and amortization expense on property and equipment totaled $2.2 million and $7.1 million for the quarter and nine months ended October 3, 2022, respectively. Depreciation and amortization expense decreased due to assets fully depreciating and impairments taken during 2022.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

4. Goodwill and Intangible Assets, Net

The following is a summary of the components of goodwill and intangible assets, net:


	October 2, 2023						January 2, 2023
(in thousands)	Amount		Accumulated Amortization		Net Carrying Value		Amount		Accumulated Amortization		Net Carrying Value
Intangible assets subject to amortization:
Franchise agreements	$	24,840	$	(9,906)	$	14,934	$	24,839	$	(7,245)	$	17,594
BurgerFi trade names / trademarks	83,033		(7,727)		75,306		83,035		(5,650)		77,385
Anthony's trade names / trademarks	60,690		(3,877)		56,813		60,691		(2,360)		58,331
License agreement	1,177		(1,166)		11		1,176		(1,063)		113
VegeFi product	135		(38)		97		135		(28)		107
Subtotal	$	169,875	$	(22,714)	$	147,161	$	169,876	$	(16,346)	$	153,530
Liquor licenses	$	5,930	$	—	$	5,930	$	6,678	$	—	$	6,678

Total intangible assets, net					$	153,091					$	160,208

Goodwill:
BurgerFi	$	—					$	—
Anthony's	31,621						31,621
Total	$	31,621					$	31,621

Intangible asset amortization expense totaled $2.1 million for both the quarters ended October 2, 2023 and October 3, 2022, and $6.4 million for both the nine months ended October 2, 2023 and October 3, 2022.

5. Contract Liabilities

A roll forward of contract liabilities is as follows:


	Nine Months Ended
(in thousands)	October 2, 2023		October 3, 2022
Balance, beginning of period	$	1,092	$	2,577
Initial/Transfer franchise fees received	193		321
Revenue recognized for stores open and transfers during period	(100)		(242)
Revenue recognized related to franchise agreement terminations	(374)		(882)
Other unearned revenue (recognized) received	(46)		(70)
Balance, end of period	$	765	$	1,704

Franchise Revenue

Revenue recognized during the periods included in royalty and other fees on our consolidated statement of operations shown was as follows:


	Quarter Ended				Nine Months Ended
	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022
Franchise Fees	$	7	$	508	$	520	$	1,194

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

6 Net Loss Per Share

Net Loss per common share is computed by dividing Net Loss by the weighted average number of common shares outstanding for the period. The Company has considered the effect of (1) warrants outstanding to purchase 15,063,800 shares of common stock and (2) 75,000 shares of common stock and warrants to purchase 75,000 shares of common stock in the unit purchase option, (3) 2,983,500 shares of restricted stock units outstanding in the calculation of income per share, and (4) the impact of any dividends associated with our redeemable preferred stock. As the effect of these on the computation of net loss per common share would have been anti-dilutive, they were excluded from the weighted average number of common shares outstanding.

Basic and diluted net loss per common share is calculated as follows:


(in thousands, except for per share data)	Quarter Ended				Nine Months Ended
Numerator:	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022


Net loss available to common stockholders - diluted	$	(4,958)	$	(3,332)	$	(20,110)	$	(77,269)

Denominator:




Basic and diluted weighted-average shares outstanding	26,793,358		22,253,232		25,078,410		22,146,258

Basic and diluted net loss per common share	$	(0.19)	$	(0.15)	$	(0.80)	$	(3.49)

For the quarter and nine months ended October 2, 2023 and October 3, 2022, there were no dilutive warrants.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

7. Related Party Transactions

The Company is affiliated with various entities through common control and ownership.

On January 23, 2023, the Company settled a claim filed by a significant stockholder. The settlement resulted in the transfer of five BurgerFi entities from the stockholder to the Company of which two were operating stores and three were entities that historically had operated stores but have since closed. The fair value of consideration paid in the settlement was $0.9 million and included $0.5 million in cash and the issuance of 200,000 shares in common stock valued at $0.4 million. The fair value of net liabilities assumed in the transaction was $0.1 million which included lease liabilities and operating assets and liabilities including property and equipment of two operating stores, net of pre-existing liabilities accrued.

The accompanying consolidated balance sheets as of January 2, 2023 reflect amounts related to periodic advances between the Company and these entities for working capital and other needs as due from related companies or due to related companies, as appropriate. There were no amounts due from related companies as of October 2, 2023 as a result of the settlement with the significant stockholder. There was approximately $0.3 million due from related parties included in other assets in the accompanying consolidated balance sheets as of January 2, 2023.

During 2022, the Company received royalty revenue from the two operating stores that were transferred on January 23, 2023 as a result of the settlement with the significant stockholder of $0.1 million for the quarter and nine months ended October 3, 2022.

The Company leased building space for its former corporate office from an entity under common ownership with a significant stockholder. This lease had a 36-month term, effective January 1, 2020. In January 2022, the Company exercised its right to terminate this lease effective as of July 2022. For the quarter and nine months ended October 3, 2022, rent expense related to this lease was approximately $0.1 million.

Pursuant to a lease amendment entered into in February 2022, the Company leases building space for its corporate office from an entity controlled by the Company's Executive Chairman of the Board. This lease has a 10-year term with an option to renew. For the quarter and nine months ended October 2, 2023 rent expense was approximately $0.2 million and $0.5 million, respectively. For the quarter and nine months ended October 3, 2022, rent expense was approximately $0.2 million and $0.4 million, respectively.

The Company had an independent contractor agreement with a corporation (the “Consultant”) for which the Chief Operating Officer (the “Consultant Principal”) of Lionheart Capital, LLC, an entity controlled by the Company’s Executive Chairman of the Board, serves as President. Pursuant to the terms of the agreements, the Consultant provided certain strategic advisory services to the Company in exchange for total annual cash compensation and expense reimbursements of $0.1 million, payable monthly. The engagement ended in September of 2023.

On January 3, 2023, the Company awarded the Consultant Principal a $0.1 million bonus in connection with the Company’s amendment and extension of its Credit Facility and granted the Consultant Principal 38,000 unrestricted shares of common stock of the Company. The Company recorded share-based compensation associated with this grant of approximately $0.1 million for the nine months ended October 2, 2023. There was no expense included for the quarter ended October 2, 2023.

On January 3, 2022, the Company granted the Consultant Principal 37,959 unrestricted shares of common stock of the Company. The Company recorded share-based compensation associated with this grant of approximately $0.1 million and $0.2 million, respectively, during the quarter and nine months ended October 3, 2022, and $0.2 million for the nine months ended October 2, 2023. There was no expense included for the quarter ended October 2, 2023.

On June 3, 2023, the Company entered into a stock purchase agreement with an investing entity for the sale of 2,868,853 shares of Company common stock at an issuance price of $1.22 per share for total proceeds of $3.4 million. Upon the execution of this agreement, the investing entity became a holder of approximately 11% of the Company’s outstanding common stock. During the third quarter, the Company entered into four franchise agreements with an affiliate of this entity.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

8. Commitments and Contingencies

Litigation

John Walker, Individually and On Behalf of all Other Similarly Situated v. BurgerFi International, Inc. et al (in the United States District Court, Southern District of Florida, Case No. 023-cv-60657). On April 6, 2023, John Walker, on behalf of himself and other similarly situated plaintiffs, filed a class action lawsuit against the Company and certain current and former executives alleging that the Company violated certain securities laws by making false and misleading statements or failed to disclose that (1) the Company had overstated the effectiveness of its acquisition and growth strategies, and (2) the Company had misrepresented the purported benefits of the Anthony’s acquisition and the post-acquisition business and financial prospects of the Company. On July 20, 2023, the court appointed John Walker and Joseph Poalino as co-lead plaintiffs in the matter. On September 5, 2023, an Order of Dismissal without prejudice was signed. Therefore, no contingent liability has been recorded as of October 2, 2023.

Second 82nd SM, LLC v. BF NY 82, LLC, BurgerFi International, LLC and BurgerFi International, Inc. (in the Supreme Court of the State of New York County of New York, having index No. 654907/2021 filed August 11, 2021). A lawsuit was filed by Second 82nd SM, LLC (“Landlord”) against BF NY 82, LLC (“Tenant”) whereby Landlord brought a 7-count lawsuit for, among other things, breach of the lease agreement and underlying guaranty of the lease. The amount of damages Landlord is seeking approximately $1.5 million, which constitutes back rent, late charges, real estate taxes, illuminated sign charges and water/sewer charges. On November 3, 2021, the Company filed a Motion to Dismiss the Complaint. On November 17, 2021, the Tenant filed an Answer to Landlord’s Complaint and a cross claim against the Company, which the Company answered on December 7, 2021. On December 22, 2021, the Company filed its Response in Opposition to Landlord’s Motion for Summary Judgment and Memo in further Support of its Motion to Dismiss. The Company turned over possession of the property in early 2023. On July 5, 2023, the Landlord filed a Motion of Summary Judgment seeking approximately $1.2 million in past due rent payments. On August 14, 2023, the Court entered an order granting the Landlord’s Motion for Summary Judgment and ordered a damages hearing on the motion, which has not yet been scheduled. On October 2, 2023 a settlement agreement was executed by all parties and the parties filed a stipulation of dismissal with prejudice on October 6, 2023.

Lion Point Capital, L.P.(“Lion Point”) v. BurgerFi International, Inc. (Supreme Court of the State of New York County of New York, Index No. 653099/2022, filed August 26, 2022. A lawsuit filed by Lion Point against the Company, alleging that the Company failed to timely register Lion Point’s shares in violation of the registration rights agreement to which Lion Point is a party, which allegedly resulted in losses in excess of $26.0 million. In November 2022, as amended in February 2023, the Company filed its answer to the complaint. On April 13, 2023, Lion Point filed a Motion for Summary Judgment, and the Company responded with its reply on June 22, 2023. On October 12, 2023, the Court granted Lion Point’s Motion for Summary Judgment and set a status conference for November 15, 2023 to begin the damages phase of the case. The Company continues to believe that all claims for damages are meritless and plans to vigorously defend such claims. The Company is unable to determine the likelihood of a loss or range of loss, if any, which may result from the case described above, and any losses, however, may be material to the Company's financial position and results of operations.

Burger Guys of Dania Pointe, et. al. v. BFI, LLC (Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, Case No. 50-2021-CA -006501-XXXX-MB filed May 21, 2021). In response to a demand letter issued by BurgerFi to Gino Gargiulo, a former franchisee, demanding that Mr. Gargiulo pay the balance owed under an asset purchase agreement wherein BurgerFi sold the Dania Beach, Florida BurgerFi location to Mr. Gargiulo, Mr. Gargiulo filed suit against BurgerFi claiming, in addition to other matters, that no further monies are owed under the asset purchase agreement and alleges that the Company is responsible for one of Mr. Gargiulo’s failed franchises in Sunny Isles, Florida, losses he has allegedly sustained at his Dania Beach location, and reimbursement of expenses in connection with his marketing company. Mr. Gargiulo seeks damages in excess of $2.0 million in the aggregate. The parties attended mediation on January 20, 2022, which ended in an impasse. Mr. Gargiulo amended his complaint in April 2022, which, among other matters, amended the defendant parties. In October 2022, the Company filed an additional motion to dismiss the amended complaint and a motion to stay discovery. In January 2023, Mr. Gargiulo filed a third amended complaint. In March 2023, the Company filed an answer to Mr. Gargiulo’s complaint and a counterclaim against Mr. Gargiulo relating to the breach of the asset purchase agreement discussed above. On November 5, 2023, the parties attended mediation, which ended in an impasse. Depositions are ongoing and a trial has been set for April 2024. We believe that all Mr. Gargiulo claims are meritless, and the Company plans to vigorously defend these allegations. Management is unable to determine the likelihood of a loss or range of loss, if any, which may result from the case described above, and, therefore, no contingent liability has

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

been recorded as of October 2, 2023; any losses, however, may be material to the Company's financial position and results of operations.

All Round Food Bakery Products, Inc. v. BurgerFi International, LLC and Neri’s Bakery Products, Inc. et al (Supreme Court Westchester County, New York (Index Number 52170-2020)). In a suit filed in February 2020, the plaintiff, All Round Food Bakery Products, Inc. (“All Round Food”) alleges breach of contract and lost profits in excess of $1.0 million over the course of the supply agreement with the Company and Neri’s Bakery Products, Inc. (“Neri’s” and together with the Company, the “Defendants”). The Defendants assert, among other matters, that the supply agreement amongst the parties, whereby All Round Food was warehousing BurgerFi products produced by Neri’s, was terminated when All Round Food failed to cure its material breach of the supply agreement after due notice. The parties attended several additional court ordered mediations during over the last several months to attempt to resolve the dispute, however, no resolution has been reached. We believe that all claims are meritless, and the Company plans to vigorously defend these allegations. The court entered an order to dismiss the case on August 15, 2023; therefore, no contingent liability has been recorded as of October 2, 2023.

Employment Related Claims.

In July 2021, the Company received a demand letter from the attorney of one of its now former hourly restaurant employees. The letter alleges that the former employee was sexually harassed by one of her co-workers. The demand letter claims that the Company discriminated and retaliated against the former employee based on her gender and age and also alleged intentional infliction of emotional distress, negligent hiring, negligent training, and negligent supervision. While the Company entered into a partial settlement with the former employee in December 2022 for a de minimus cash amount relating solely to the discrimination claim, the other claims remain.

In March 2020, the Company received notification of a U.S. Equal Employment Opportunity Commission (the “EEOC”) complaint claiming sexual harassment and assault. On July 5, 2023, the EEOC issued a determination letter declining to investigate the matter further and issued a right to sue letter. On September 29, 2023, the claimant filed a lawsuit. The suit is in the early stages and the Company is currently working through initial responses.

While the Company believes that all claims of the above mentioned Employment Related Claims, which are covered under the Company’s insurance policies, are meritless, and it plans to defend these allegations, it is reasonably possible that the Company may ultimately be required to pay damages to the claimants, which could be up to $0.5 million or more in aggregate compensatory damages, attorneys’ fees and costs. Management believes that any liability, in excess of applicable insurance coverages or accruals, which may result from these claims, would not be significant to the Company’s financial position or results of operations.

General Liability and Other Claims.

The Company is subject to other legal proceedings and claims that arise during the normal course of business, including landlord disputes, slip and fall cases, and various food related matters. While it intends to vigorously defend these matters, it is reasonably possible that the Company may be required to pay substantial damages to the claimants. Management believes that any liability, in excess of applicable insurance coverages or accruals, which may result from these claims, would not be significant to the Company’s financial position or results of operations.

Purchase Commitments

From time to time, we enter into purchase commitments for certain food commodities in the normal course of business. As of October 2, 2023, we entered into approximately $4.3 million in unconditional purchase obligations over the next twelve months.

9. Leases

The Company has entered into various lease agreements and these agreements expire on various dates through 2032 and have renewal options.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

The components of lease expense for the periods shown is as follows:


		Quarter Ended				Nine Months Ended
(in thousands)	Classification	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022
Operating lease cost	Occupancy and related expenses Pre-opening costs Store closure costs	$	3,202	$	3,202	$	9,665	$	9,796
Finance lease cost:
Amortization of right-of-use assets	Depreciation and amortization expense	55		62		168		196
Interest on lease liabilities	Interest expense	12		15		39		48
Less: Sublease income	Occupancy and related expenses	(62)		(47)		(156)		(141)
Total lease cost		$	3,207	$	3,232	$	9,716	$	9,899

The maturity of the Company's operating and finance lease liabilities as of October 2, 2023 is as follows:


(in thousands)	Operating Leases		Finance Leases
One Year	$	12,252	$	114
Two Years	12,242		248
Three Years	10,382		234
Four Years	8,873		224
Five Years	7,120		219
Thereafter	9,109		385

Total undiscounted lease payments	59,978		1,424
Less: present value adjustment	(7,054)		(144)
Total net lease liabilities	$	52,924	$	1,280

As most of the Company's leases do not provide an implicit rate, the Company uses its incremental borrowing rate based on the information available at the commencement date in determining the present value of lease payments. The Company gives consideration to its recent debt issuances as well as publicly available data for instruments with similar characteristics when calculating its incremental borrowing rates.

A summary of lease terms and discount rates for finance and operating leases is as follows:


	October 2, 2023		October 3, 2022
Weighted-average remaining lease term (in years)
Operating leases	5.5		6.3
Finance leases	5.7		6.5
Weighted-average discount rate
Operating leases	7.3	%	6.0	%
Finance leases	6.0	%	6.0	%

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

10. Debt


(in thousands)	October 2, 2023		January 2, 2023
Term loan	$	52,067	$	54,507
Related party note payable	15,100		10,000
Revolving line of credit	—		4,000
Other notes payable	722		780
Finance lease liability	1,280		933
Total Debt	$	69,169	$	70,220
Less: Unamortized debt discount to related party note	(650)		(765)
Less: Unamortized debt issuance costs	(1,134)		(1,441)
Total Debt, net	67,385		68,014
Less: Short-term borrowings, including finance leases	(3,539)		(4,985)
Total Long-term borrowings, including finance leases and related party note payable	$	63,846	$	63,029

The Company Credit Agreement, which provides the Company with lender financing structured as a $52.1 million term loan and $4.0 million available under the line of credit as of October 2, 2023, has a maturity date of September 30, 2025.

On February 1, 2023, the Credit Agreement was amended through the Fourteenth Amendment and subsequently on February 24, 2023 further amended through the Fifteenth Amendment resulting in the Company and its subsidiaries entering into a Secured Promissory Note (the “Note”) with CP7 Warming Bag L.P., an affiliate of L. Catterton Fund L.P., as lender (the “Junior Lender”), pursuant to which the Junior Lender continued that certain delayed draw term loan (the “Delayed Draw Term Loan”) of $10.0 million, under the Credit Agreement, which is junior subordinated secured indebtedness, and also provided $5.1 million of new junior subordinated secured indebtedness, to the Company (collectively the “Junior Indebtedness”), for a total of $15.1 million in junior subordinated secured debt on terms reasonably acceptable to the Required Lenders (as defined in the Credit Agreement), including, without limitation, that (1) such indebtedness shall not mature until at least two (2) years after the maturity date of the credit facility of September 30, 2025; (2) no payments of cash interest shall be made on such indebtedness until after the repayment in full of the obligations under the Credit Agreement; and (3) no scheduled or voluntary payments of principal shall be made until after the repayment in full of the obligations under the Credit Agreement.

On July 7, 2023 the Credit Agreement was amended through the Sixteenth Amendment, which amended the definition of EBITDA for the purposes of expanding the scope of non-recurring items that may be included in the determination of Adjusted EBTIDA, as well as modifications to certain covenants for leverage and fixed charge ratios.

The terms of the Credit Agreement require the Company to repay the principal of the term loan in quarterly installments with the balance due at the maturity date, as follows:


in thousands
2023	$	814
2024	3,254
2025	47,999
Total	$	52,067

The Credit Agreement, including the term loan and revolving line of credit, is secured by substantially all of the Company’s assets and incurs interest on outstanding amounts at the following rates per annum through maturity:

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)


Time Period			Interest Rate
Through December 31, 2022			6.75%
From January 1, 2023 through June 15, 2023			6.75%
From June 16, 2023 through December 31, 2023			6.75%
From January 1, 2024 through June 15, 2024			7.25%
From June 16, 2024 through maturity			7.75%

The Delayed Draw Term Loan is a non-interest bearing loan and accordingly was recorded at fair value as part of the Anthony’s acquisition which resulted in a debt discount of approximately $1.3 million and is being amortized over the period of the Delayed Draw Term Loan. The Company recorded debt discount amortization of an immaterial amount for the quarter ended October 2, 2023 and $0.1 million for the nine months ended October 2, 2023, which is included within interest expense in the accompanying consolidated statements of operations.

The Junior Indebtedness, which accrues interest at 4% per annum (i) is secured by a second lien on substantially all of the assets of the Company and the subsidiary guarantors (the “Guarantors”) pursuant to the terms and that certain Guaranty and Security Agreement, dated February 24, 2023, by and among the Guarantors and the Junior Lender, (ii) is subject to the terms of that certain Intercreditor and Subordination Agreement dated February 24, 2023, by and between the Administrative Agent and the Junior Lender and acknowledged by the borrowers and the guarantors, and (iii) matures on the date that is the second anniversary of the maturity date under the Credit Agreement (the “Junior Maturity Date”) (September 30, 2027, based on the maturity date under the Credit Agreement of September 30, 2025).

Under the terms of the Junior Indebtedness, no payments of cash interest or payments of principal shall be due until the Junior Maturity Date, and no voluntary prepayments may be made on the Junior Indebtedness prior to the Junior Maturity Date until after the repayment in full of the obligations under the Credit Agreement.

The Company had $14.4 million and $9.2 million recorded, net of unamortized discount under the Junior Indebtedness as of October 2, 2023 and January 2, 2023, included in related party note payable in the accompanying consolidated balance sheets.

The amendments to the Credit Agreement and the Delayed Draw Term Loan were accounted for as modifications of debt in the Company’s accompanying consolidated financial statements.

For the quarter and nine months ended October 2, 2023 and October 3, 2022, interest expense consisted of:


	Quarter Ended				Nine Months Ended
(in thousands)	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022
Interest on credit agreement	$	1,069	$	1,024	$	3,199	$	2,855
Amortization of debt issuance costs	38		110		115		402
Amortization of related party note discount	128		128		364		383
Non-cash interest on redeemable preferred stock	1,063		963		3,127		2,871
Other interest (income) expense, net	(79)		20		(297)		51
	$	2,219	$	2,245	$	6,508	$	6,562

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

11. Income Taxes

For the quarter and nine months ended October 2, 2023, the Company's effective income tax rate was 0%. The difference from the U.S. corporate statutory federal income tax rate of 21%, is primarily the result of the valuation allowance applied to reduce the Company’s deferred tax assets to the amount that is more likely than not to be realized. For the quarter and nine months ended October 3, 2022, the Company's effective income tax rate was 0% and 0.6%, respectively, differing from the U.S. corporate statutory federal income tax rate of 21%, and the difference is primarily the result of the valuation allowance applied to reduce the Company’s deferred tax assets to the amount that is more likely than not to be realized.

12. Stockholders' Equity

Common Stock

The Company is authorized to issue 100,000,000 shares of common stock with a par value of $0.0001 per share. Holders of the Company’s common stock are entitled to one vote for each share. At October 2, 2023 and January 2, 2023, there were 26,805,474 shares and 22,257,772 shares of common stock outstanding, respectively.

In addition to the CEO Awards, as defined below, as contemplated by the Bachmann Employment Agreement (as defined below) and as an inducement to employment, effective as of July 10, 2023, the Company issued the CEO 63,500 shares of the Company’s common stock, which such shares are subject to Rule 144 of the Securities Act of 1933, as amended.

Preferred Stock

The Company is authorized to issue 10,000,000 shares of preferred stock with a par value of $0.0001 per share with such designation, rights and preferences as may be determined from time to time by the Company’s Board of Directors. As of October 2, 2023 and January 2, 2023, there were 2,120,000 shares of preferred stock outstanding.

On February 24, 2023, the Company filed an amended and restated certificate of designation, (the “A&R CoD”), which among other matters, added a provision providing that in the event the Company fails to timely redeem any shares of Series A Preferred Stock on November 3, 2027, the applicable dividend rate shall automatically increase to the lesser of (A) the sum of 10% plus the 2% applicable default rate (with such aggregate rate increasing by an additional 0.35% per quarter from and after November 3, 2027), or (B) the maximum rate that may be applied under applicable law, unless waived in writing by a majority of the outstanding shares of Series A Junior Preferred Stock.

The A&R CoD also added a provision providing that in the event the Company fails to timely redeem any shares of Series A Junior Preferred Stock in connection with a Qualified Financing (as defined in the A&R CoD) on November 3, 2027 (a “Default”), the Company agrees to promptly commence a debt or equity financing transaction or sale process to solicit proposals for the sale of the Company and its subsidiaries (or, alternatively, the sale of material assets) designed to yield the maximum cash proceeds to the Company available for redemption of the Series A Junior Preferred Stock as promptly as practicable, but in any event, within 12 months from the date of the Default. If on or after November 3, 2026, the Company is aware that it is reasonably unlikely to have sufficient cash to timely effect the redemption in full of the Series A Junior Preferred Stock when first due, the Company shall, prior to such anticipated due date, take reasonable steps to engage an investment banking firm of national standing (and other appropriate professionals) to conduct preparatory work for such a financing transaction and sale process of the Company and its subsidiaries to provide for such transaction to occur as promptly as possible after any failure for a timely redemption of the Series A Junior Preferred Stock.

The Series A Junior Preferred Stock ranks senior to the common stock and may be redeemed at the option of the Company at any time and must be redeemed by the Company in limited circumstances. The Series A Junior Preferred Stock shall not have voting rights or conversion rights.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

Warrants and Options

As of October 2, 2023, the Company had the following warrants and options outstanding: 15,063,800 warrants outstanding, each exercisable for one share of common stock at an exercise price of $11.50 including 11,468,800 in public warrants, 3,000,000 in private placement warrants (“private warrants”), 445,000 in Private Warrants and 150,000 in Working Capital Warrants, and 75,000 Unit Purchase Option units that are each exercisable for (i) one share of common stock at an exercise price of $10.00 and (i) one warrant exercisable for one share of common stock at an exercise price of $11.50. The public warrants expire in December 2025.

Warrant Liability

The Company has private warrants, which include provisions that affect the settlement amount. Such variables are outside of those used to determine the fair value of a fixed-for-fixed instrument, and as such, the warrants are accounted for as liabilities in accordance with ASC 815-40, Derivatives and Hedging, with changes in fair value included in the accompanying consolidated statements of operations.

The warrant liability was $0.4 million and $0.2 million at October 2, 2023 and January 2, 2023, respectively, and is included in other non-current liabilities on the accompanying consolidated balance sheets. The change in fair value of warrant liabilities for the quarter and nine months ended October 2, 2023 resulted in a gain of $0.2 million and a loss of $0.2 million, respectively, and is recognized in the accompanying consolidated statements of operations. The gain on change in the fair value of warrant liabilities for the quarter and nine months ended October 3, 2022 was $0.7 million and $2.1 million, respectively, and is recognized in the accompanying consolidated statements of operations.

The following is an analysis of changes in the warrant liability:



(in thousands)
Warrant liability at January 2, 2023	$	195
Loss during the period	167
Warrant liability at October 2, 2023	$	362

The fair value of the warrants are determined using the publicly-traded price of our common stock on the valuation dates of $1.14 on October 2, 2023 and $1.26 on January 2, 2023. See Note 13, “Fair Value Measurements.”

Share-Based Compensation

The Company has the ability to grant stock options, stock appreciation rights, restricted stock, restricted stock units (“RSUs”), restricted stock units with performance conditions (“PSUs”), other share-based awards and performance compensation awards to current or prospective employees, directors, officers, consultants or advisors under the Company’s 2020 Omnibus Equity Incentive Plan (the “Plan”).

On January 5, 2023, the Company filed a Registration Statement with the SEC to register 1,112,889, additional shares of common stock, $0.0001 par value per share, of the Company under the Plan, pursuant to the “evergreen” provision of the Plan providing for an automatic increase in the number of shares reserved for issuance under the Plan.

As of October 2, 2023 and January 2, 2023, there were approximately 400,000 and 600,000 shares of common stock available for future grants under the Plan, respectively.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

RSU and PSU Awards under the Plan

The following table summarizes activity RSUs and PSUs during the nine months ended October 2, 2023:


	Number of Restricted Stock Units	Weighted Average Grant Date Fair Value
Non-vested at January 2, 2023	1,445,600	$	11.68
Granted	793,460	1.24
Vested	(356,644)	13.55
Forfeited	(298,916)	5.72
Non-vested at October 2, 2023	1,583,500	$	7.11

Share-based compensation expense recognized for awards under the Plan during the quarter and nine months ended October 2, 2023 was $0.1 million and $5.3 million, respectively. Share-based compensation expense recognized during the quarter and nine months ended October 3, 2022 was approximately $1.0 million and $9.3 million, respectively. As of October 2, 2023, there was approximately $6.6 million of total unrecognized compensation cost related to unvested RSUs or PSUs under the Plan to be recognized over a weighted average period of 1.2 years.

Restricted Stock Unit Awards - Inducement Awards

On July 10, 2023, the Company issued awards of RSUs and PSUs to the Chief Executive Officer (“CEO Awards”) and the Chief Financial Officer (“CFO Awards”) as part of an inducement to enter into employment agreements with the Company (“Inducement Awards”). The Inducement Awards are not part of the Plan, and no common shares are currently reserved for issuance as of October 2, 2023. Terms of the Inducement Awards are as follows:

•The CEO Awards are comprised of 500,000 time based RSUs which, subject to continuous employment, vest in equal tranches of 100,000 units per year, and 500,000 PSUs, which, subject to continuous employment and the achievement of certain performance criteria, vest in equal tranches of 100,000 units per year.

•The CFO Awards are comprised of 200,000 time based RSUs which, subject to continuous employment, vest in equal tranches of 40,000 units per year, and 200,000 PSUs, which, subject to continuous employment and the achievement of certain performance criteria, vest in equal tranches of 40,000 units per year.

Vesting for the Inducement Awards is over a five year period. Share based compensation expense related to the Inducement Awards recognized during the quarter and nine months ended October 2, 2023 was $0.1 million. There was no share-based compensation expense recognized during the quarter and nine months ended October 3, 2022. As of October 2, 2023, there was approximately $2.0 million of total unrecognized compensation cost related to unvested Inducement Awards to be recognized over a weighted average period of 3.5 years.

Share-based compensation expense recognized for awards under the Plan and the Inducement Awards during the quarter and nine months ended October 2, 2023 was $0.2 million and $5.4 million, respectively. As of October 2, 2023, there was approximately $8.6 million of total unrecognized compensation cost related to unvested RSUs or PSUs under the Plan and Inducement Awards to be recognized over a weighted average period of 2.3 years.

13. Fair Value Measurements

Fair values of financial instruments are estimated using public market prices, quotes from financial institutions, and other available information. The fair values of cash equivalents, receivables, net, accounts payable and short-term debt approximate their carrying amounts due to their short duration.

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

The following tables summarize the fair values of financial instruments measured at fair value on a recurring basis as of October 2, 2023 and January 2, 2023.


	Items Measured at Fair Value at October 2, 2023
(in thousands)	Quoted prices in active market for identical assets (liabilities) (Level 1)		Significant other observable inputs (Level 2)		Significant unobservable inputs (Level 3)
Warrant liability	—		$	362	—
Total	$	—	$	362	$	—


	Items Measured at Fair Value at January 2, 2023
(in thousands)	Quoted prices in active market for identical assets (liabilities) (Level 1)		Significant other observable inputs (Level 2)		Significant unobservable inputs (Level 3)
Warrant liability	—		$	195	—
Total	$	—	$	195	$	—

In estimating our fair value disclosures for financial instruments, we use the following methods and assumptions:

The fair value of the Company’s warrant liability is measured at fair value on a recurring basis, classified as Level 2 in the fair value hierarchy. The fair value of the private placement warrants, private warrants, and working capital warrants are determined using the publicly-traded price of its common stock on the valuation dates of $1.14 on October 2, 2023 and $1.26 on January 2, 2023. The fair value is calculated using the Black-Scholes option-pricing model. The Black-Scholes model requires us to make assumptions and judgments about the variables used in the calculation, including the expected term, expected volatility, risk-free interest rate, dividend rate and service period. The calculated warrant price for private warrants was $0.10 and $0.05 on October 2, 2023 and January 2, 2023.

The input variables for the Black-Scholes are noted in the table below:


	October 2, 2023		January 2, 2023
Risk-free interest rate	4.95	%	4.14	%
Expected life in years	2.2		3.0
Expected volatility	94.5	%	68.0	%
Expected dividend yield	—	%	—	%

Assets and liabilities that are measured at fair value on a non-recurring basis include our long-lived assets and definite-lived intangible assets which are adjusted to fair value upon impairment. In determining fair value, we used an income-based approach. As a number of assumptions and estimates were involved that are largely unobservable, they are classified as Level 3 inputs within the fair value hierarchy. Assumptions used in these forecasts are consistent with internal planning, and include revenue growth rates, royalties, gross margins, and operating expense in relation to the current economic environment and the Company’s future expectations.

14. Segment Information

The Company has two operating and reportable segments: BurgerFi and Anthony's.

The Company’s measure of segment income is Adjusted EBITDA. We define Adjusted EBITDA as net loss before goodwill impairment, lease termination recovery, employee retention credits, share-based compensation expense, depreciation and amortization expense, interest expense (which includes accretion on the value of preferred stock and interest accretion on the related party note), restructuring costs, merger, acquisition and integration costs, legal settlements,

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)

net of gains, store closure costs, loss (gain) on change in value of warrant liability, pre-opening costs, (gain) loss on sale of assets and income tax expense (benefit). Although the Company had historically considered net income to be an appropriate measure of segment profit and loss, management believes Adjusted EBITDA is a more meaningful measure of the Company’s performance.

Adjusted EBITDA is used by the Company to evaluate its performance, both internally and as compared with its peers, because this measure excludes certain items that may not be indicative of the Company’s operating performance, as well as items that can vary widely across different industries or among companies within the same industry. The Company believes that this adjusted measure provides a baseline for analyzing trends in its underlying business.

The following table presents segment revenue and a reconciliation of adjusted EBITDA to net loss by segment:


	Quarter Ended
	Consolidated				BurgerFi				Anthony's
(in thousands)	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022			October 2, 2023		October 3, 2022
Revenue by Segment	$	39,480	$	43,255	$	9,940	$	11,775		$	29,540	$	31,480

Adjusted EBITDA Reconciliation by Segment:
Net loss	$	(4,958)	$	(3,332)	$	(4,167)	$	(1,752)		$	(791)	$	(1,580)


Employee retention credits	—		(2,626)		—		(2,626)			—		—
Share-based compensation expense	172		1,010		177		1,010			(5)		—
Depreciation and amortization expense	3,272		4,253		2,123		2,212			1,149		2,041
Interest expense	2,219		2,245		1,033		1,003			1,186		1,242
Restructuring costs	353		—		311		—			42		—
Merger, acquisition and integration costs	96		168		62		168			34		—
Legal settlements, net of gains	(193)		81		(289)		81			96		—
Store closure costs	162		568		64		548			98		20
Gain on change in value of warrant liability	(224)		(726)		(224)		(726)			—		—

(Gain) loss on sale of assets	(85)		1		7		(5)			(92)		6

Adjusted EBITDA	$	814	$	1,642	$	(903)	$	(87)		$	1,717	$	1,729

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BurgerFi International Inc., and Subsidiaries

Notes to Consolidated Financial Statements (Unaudited)


	Nine Months Ended
	Consolidated				BurgerFi				Anthony's
(in thousands)	October 2, 2023		October 3, 2022		October 2, 2023		October 3, 2022			October 2, 2023		October 3, 2022
Revenue by Segment	$	128,634	$	133,484	$	34,089	$	37,628		$	94,545	$	95,856

Adjusted EBITDA Reconciliation by Segment:
Net loss	$	(20,110)	$	(77,269)	$	(18,924)	$	(36,439)		$	(1,186)	$	(40,830)
Goodwill impairment	—		55,168		—		17,505			—		37,663
Lease termination recovery	(42)		—		(42)		—			—		—
Employee retention credits	—		(2,626)		—		(2,626)			—		—
Share-based compensation expense	5,401		9,295		5,380		9,295			21		—
Depreciation and amortization expense	9,794		13,427		6,360		7,335			3,434		6,092
Interest expense	6,508		6,562		2,955