MusclePharm Corp - Quarter Report: 2018 June (Form 10-Q)

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

For the quarterly period ended: June 30, 2018

 

OR

For the transition period from  to

Commission File Number: 000-53166

 

MusclePharm Corporation

(Exact name of registrant as specified in its charter)

 

 

Nevada	77-0664193
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)
4400 Vanowen St. Burbank, CA	91505
(Address of principal executive offices)	(Zip code)

 

(800) 292-3909

(Registrant’s telephone number, including area code)

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 past 12 months, and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted 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 and post such files. Yes [X] No [ ]

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer	[ ]	Accelerated filer	[ ]
Non-accelerated filer	[ ] (Do not check if a smaller reporting company)	Smaller reporting company	[X]
		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 [X]

Number of shares of the registrant’s common stock outstanding at July 1, 2018: 15,064,667, excluding 875,621 shares of common stock held in treasury.

 

 

MusclePharm Corporation

Form 10-Q

TABLE OF CONTENTS

 

		Page
Note About Forward-Looking Statements		1
PART I – FINANCIAL INFORMATION
Item 1.	Financial Statements
	Condensed Consolidated Balance Sheets as of June 30, 2018 (unaudited) and December 31, 2017	2
	Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2018 and 2017 (unaudited)	3
	Condensed Consolidated Statements of Comprehensive Loss for the three and six months ended June 30, 2018 and 2017 (unaudited)	4
	Condensed Consolidated Statement of Changes in Stockholders’ Deficit for the six months ended June 30, 2018 (unaudited)	5
	Condensed Consolidated Statements of Cash Flows for the six months ended June 30, 2018 and 2017 (unaudited)	6
	Notes to Condensed Consolidated Financial Statements (unaudited)	7
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	23
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	37
Item 4.	Controls and Procedures	37
PART II – OTHER INFORMATION
Item 1.	Legal Proceedings	38
Item 1A.	Risk Factors	39
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	39
Item 3.	Defaults Upon Senior Securities.	40
Item 4.	Mine Safety Disclosures	40
Item 5.	Other Information	40
Item 6.	Exhibits	40
	Signatures	41

 

 

Forward-Looking Statements

 

 Except as otherwise indicated herein, the terms “Company,” “we,” “our” and “us” refer to MusclePharm Corporation and its subsidiaries. This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. All statements contained in this Quarterly Report on Form 10-Q other than statements of historical fact, including statements regarding our future results of operations and financial position, including our future profits, financing sources and our ability to satisfy our liabilities, our business strategy and plans, and our objectives for future operations, are forward-looking statements. The words “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” and similar expressions are intended to identify forward-looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and trends that we believe may affect our financial condition, results of operations, business strategy, short-term and long-term business operations and objectives, and financial needs. These forward-looking statements are subject to a number of risks, uncertainties and assumptions, including those described in Item 1A, “Risk Factors” in our Annual Report on Form 10-K filed with the Securities and Exchange Commission (the “SEC”) on April 2, 2018. Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks, uncertainties and assumptions, the future events and trends discussed in this Quarterly Report on Form 10-Q may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements.

 

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.

 

 

 

 

 

 

 

 

PART I—FINANCIAL INFORMATION

Item 1. Financial Statements

MusclePharm Corporation

Condensed Consolidated B alance Sheets

(In thousands, except share and per share data)

 

	June 30, 2018	December 31, 2017
	(Unaudited)
ASSETS
Current assets:
Cash	$2,442	$6,228
Accounts receivable, net of allowance for doubtful accounts of $1,556 and $1,363, respectively	16,278	16,668
Inventory	7,651	6,484
Prepaid expenses and other current assets	1,140	1,082
Total current assets	27,511	30,462
Property and equipment, net	1,491	1,822
Intangible assets, net	1,157	1,317
Other assets	238	225
TOTAL ASSETS	$30,397	$33,826
LIABILITIES AND STOCKHOLDERS’ DEFICIT
Current liabilities:
Accounts payable	$16,562	$11,742
Accrued liabilities	5,700	7,761
Accrued restructuring charges, current	564	595
Obligation under secured borrowing arrangement	2,787	5,385
Line of credit	2,000	3,000
Total current liabilities	27,613	28,483
Convertible note with a related party, net of discount	17,071	16,669
Accrued restructuring charges, long-term	80	120
Other long-term liabilities	1,248	1,088
Total liabilities	46,012	46,360
Commitments and contingencies (Note 8)
Stockholders' deficit:
Common stock, par value of $0.001 per share; 100,000,000 shares authorized 15,940,288 and 15,526,175 shares issued as of June 30, 2018 and December 31, 2017, respectively; 15,064,667 and 14,650,554 shares outstanding as of June 30, 2018 and December 31, 2017, respectively	15	14
Additional paid-in capital	159,918	159,608
Treasury stock, at cost; 875,621 shares	(10,039)	(10,039)
Accumulated other comprehensive loss	(165)	(150)
Accumulated deficit	(165,344)	(161,967)
TOTAL STOCKHOLDERS’ DEFICIT	(15,615)	(12,534)
TOTAL LIABILITIES AND STOCKHOLDERS’ DEFICIT	$30,397	$33,826

 

The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.

 

 

MusclePharm Corporation

Condensed Consolidated Statements of Operations

(In thousands, except share and per share data)

(Unaudited)

 

	Three Months Ended June 30,		Six Months Ended June 30,
	2018	2017	2018	2017
Revenue, net	$27,104	$26,192	$53,651	$52,201
Cost of revenue	18,952	18,576	37,280	38,115
Gross profit	8,152	7,616	16,371	14,086
Operating expenses:
Advertising and promotion	4,991	2,240	8,652	4,128
Salaries and benefits	2,295	2,620	4,449	5,889
Selling, general and administrative	2,654	2,829	5,200	5,715
Research and development	208	152	420	289
Professional fees	626	727	1,198	1,609
Settlement of obligation	(2,747)	1,453	(2,747)	1,453
Total operating expenses	8,027	10,021	17,172	19,083
Income/(Loss) from operations	125	(2,405)	(801)	(4,997)
Gain on settlement of accounts payable	—	22	—	471
Interest and other expense, net (Note 6)	(1,165)	(690)	(2,473)	(1,668)
Loss before income taxes	(1,040)	(3,073)	(3,274)	(6,194)
Income taxes	34	76	103	104
Net loss	$(1,074)	$(3,149)	$(3,377)	$(6,298)
Net loss per share, basic and diluted	$(0.07)	$(0.23)	$(0.23)	$(0.46)
Weighted average shares used to compute net loss per share, basic and diluted	14,701,473	13,845,301	14,658,812	13,809,603

 

The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.

 

 

MusclePharm Corporation

Condensed Consolidated Statements of Comprehensive Loss

(In thousands)

(Unaudited)

 

	Three Months Ended June 30,		Six Months Ended June 30,
	2018	2017	2018	2017
Net loss	$(1,074)	$(3,149)	$(3,377)	$(6,298)
Other comprehensive loss:
Change in foreign currency translation adjustment	(23)	11	(15)	17
Comprehensive loss	$(1,097)	$(3,138)	$(3,392)	$(6,281)

 

 

 

 

 

The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.

 

 

MusclePharm Corporation

Condensed Consolidated Statement of Changes in Stockholders’ Deficit

(In thousands, except share data)

(Unaudited)

 

					Accumulated
			Additional		Other		Total
	Common Stock		Paid-in	Treasury	Comprehensive	Accumulated	Stockholders’
	Shares	Amount	Capital	Stock	Loss	Deficit	Deficit
Balance—December 31, 2017	14,650,554	$14	$159,608	$(10,039)	$(150)	$(161,967)	$(12,534)
Stock-based compensation related to issuance and amortization of restricted stock awards to employees, executives and directors	—	1	241	—	—	—	242
Stock-based compensation related to issuance of stock options to an executive and a director	—	—	16	—	—	—	16
Issuance of shares of common stock related to the payment of interest on a related party note	81,113	—	53	—	—	—	53
Issuance of shares of common stock related to the settlement of litigation (see Note 8)	333,000	—	—	—	—	—	—
Change in foreign currency translation adjustment	—	—	—	—	(15)	—	(15)
Net loss	—	—	—	—	—	(3,377)	(3,377)
Balance—June 30, 2018	15,064,667	$15	$159,918	$(10,039)	$(165)	$(165,344)	$(15,615)

 

 

 

 

 

 

The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.

 

 

 

MusclePharm Corporation

Condensed Consolidated Statements of Cash Flows

(Unaudited, in thousands)

 

	Six Months Ended June 30,
	2018	2017
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss	$(3,377)	$(6,298)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization	558	790
Gain on settlement of accounts payable	—	(471)
Settlement of Obligation	(2,747)	—
Bad debt expense	414	—
Amortization of debt discount	403	—
Stock-based compensation	257	1,148
Other	—	819
Changes in operating assets and liabilities:
Accounts receivable	(71)	(120)
Inventory	(1,169)	2,465
Prepaid expenses and other current assets	(56)	(607)
Other assets	(15)	—
Accounts payable and accrued liabilities	5,835	530
Accrued restructuring charges	(71)	(73)
Net cash used in operating activities	(39)	(1,817)
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment	(73)	—
Net cash used in investing activities	$(73)	$—
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on line of credit	(1,000)	—
Proceeds from secured borrowing arrangement, net of reserves	23,785	12,116
Payments on secured borrowing arrangement, net of fees	(26,383)	(11,650)
Repayment of capital lease obligations	(69)	(63)
Net cash (used)/provided by financing activities	(3,667)	403
Effect of exchange rate changes on cash	(7)	24
NET CHANGE IN CASH	(3,786)	(1,390)
CASH — BEGINNING OF PERIOD	6,228	4,943
CASH — END OF PERIOD	$2,442	$3,553
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest	$1,936	$1,086
Cash paid for taxes	$69	$62
SUPPLEMENTAL DISCLOSURE OF NON-CASH ACTIVITIES:
Property and equipment acquired in conjunction with capital leases	$—	$12
Purchase of property and equipment included in current liabilities	$4	$—
Interest paid through issuance of shares of common stock	$53	$—

 

The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.

 

 

MusclePharm Corporation

Notes to Condensed Consolidated Financial Statements

(Unaudited)

 

Note 1. Description of Business

 

Description of Business

 

MusclePharm Corporation, or the Company, was incorporated in Nevada in 2006. Except as otherwise indicated herein, the terms “Company,” “we,” “our” and “us” refer to MusclePharm Corporation and its subsidiaries. The Company is a scientifically driven, performance lifestyle company that develops, manufactures, markets and distributes branded nutritional supplements. The Company is headquartered in Burbank, California and as of June 30, 2018 had the following wholly-owned operating subsidiaries: MusclePharm Canada Enterprises Corp., MusclePharm Ireland Limited and MusclePharm Australia Pty Limited. A former subsidiary of the Company, BioZone Laboratories, Inc. (“BioZone”), was sold on May 9, 2016.

 

Management’s Plans with Respect to Liquidity and Capital Resources

 

Management believes that its previously announced restructuring plan, the continued reduction in ongoing operating costs and expense controls, and growth strategy, will enable us to ultimately achieve profitability. Management believes that the Company has sufficiently reduced its operating expenses, and the Company’s ongoing sources of revenue together with our access to capital will be sufficient to cover these expenses for the foreseeable future. The Company can give no assurances that this will occur.

 

As of June 30, 2018, the Company had a stockholders’ deficit of $15.6 million and recurring losses from operations. To manage cash flow, the Company entered into a secured borrowing arrangement, pursuant to which the Company has the ability to borrow up to $12.5 million subject to sufficient amounts of accounts receivable to secure the loan. The secured borrowing arrangement’s term has been extended to November 30, 2018 which renews automatically for successive four-month periods unless either party receives written notice of cancellation from the other, at minimum, thirty days prior to the expiration date. In October 2017, the Company also entered into a loan and security agreement to borrow against the Company’s inventory up to a maximum of $3.0 million for an initial six-month term which automatically extends for successive six-month renewal terms. As of June 30, 2018, the Company owed $2.0 million under this loan and security agreement.

 

On November 3, 2017, the Company entered into a refinancing transaction (the “Refinancing”) with Mr. Ryan Drexler, the Company’s Chairman of the Board, Chief Executive Officer and President, to restructure all of the $18.0 million in notes payable to him, which are now due on December 31, 2019. Accordingly, such debt is classified as a long-term liability at June 30, 2018.

 

As of June 30, 2018, the Company had approximately $2.4 million in cash and $0.1 million in working capital deficit.

 

The accompanying Condensed Consolidated Financial Statements as of and for the six months ended June 30, 2018 were prepared on the basis of a going concern, which contemplates, among other things, the realization of assets and satisfaction of liabilities in the ordinary course of business. Accordingly, they do not give effect to adjustments that could be necessary should we be required to liquidate our assets.

 

The Company’s ability to continue as a going concern and raise capital for specific strategic initiatives could also depend on obtaining adequate capital to fund operating losses until it becomes profitable. The Company can give no assurances that any additional capital that it is able to obtain, if any, will be sufficient to meet its needs, or that any such financing will be obtainable on acceptable terms.

 

Mr. Drexler has verbally both stated his intent and ability to put more capital into the business if necessary. However, Mr. Drexler is under no obligation to the Company to do so, and the Company can give no assurances that Mr. Drexler will be willing or able to do so at a future date and/or that he will not demand payment of his refinanced convertible note on December 31, 2019.

 

Our capital resources as of June 30, 2018, available borrowing capacity and current operating plans are expected to be sufficient to fund our planned operations for at least twelve months from the date of filing this report.

 

Note 2. Summary of Significant Accounting Policies

Basis of Presentation and Principles of Consolidation

 

The accompanying Condensed Consolidated Financial Statements have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”). The Condensed Consolidated Financial Statements include the accounts of MusclePharm Corporation and its wholly-owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.

 

Unaudited Interim Financial Information

 

The accompanying unaudited interim Condensed Consolidated Financial Statements have been prepared in accordance with GAAP and with the instructions to Form 10-Q and Article 10 of Regulation S-X for interim financial information. Accordingly, these statements do not include all of the information and notes required by GAAP for complete financial statements. The Company’s management believes the unaudited interim Condensed Consolidated Financial Statements include all adjustments of a normal recurring nature necessary for the fair presentation of the Company’s financial position as of June 30, 2018, results of operations for the three and six months ended June 30, 2018 and 2017, and cash flows for the six months ended June 30, 2018 and 2017. The results of operations for the three and six months ended June 30, 2018 are not necessarily indicative of the results to be expected for the year ending December 31, 2018.

 

These unaudited interim Condensed Consolidated Financial Statements should be read in conjunction with the consolidated financial statements and related notes included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2017, filed with the SEC on April 2, 2018.

 

Use of Estimates

 

The preparation of consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported and disclosed in the consolidated financial statements and accompanying notes. Such estimates include, but are not limited to, allowance for doubtful accounts, revenue discounts and allowances, the valuation of inventory and tax assets, the assessment of useful lives, recoverability and valuation of long-lived assets, likelihood and range of possible losses on contingencies, restructuring liabilities, valuations of equity securities and intangible assets, fair value of derivatives, warrants and options, among others. Actual results could differ from those estimates.

 

Revenue Recognition

 

The Company's previous revenue recognition policy was to recognize revenue when persuasive evidence of an arrangement existed, delivery had occurred, the fee was fixed or determinable and collection was reasonably assured.

 

The Company’s standard terms and conditions of sale allowed for product returns or replacements in certain cases. Estimates of expected future product returns were recognized at the time of sale based on analyses of historical return trends by customer type. Upon recognition, the Company reduced revenue and cost of revenue for the estimated return. Return rates could fluctuate over time, but were sufficiently predictable with established customers to allow the Company to estimate expected future product returns, and an accrual was recorded for future expected returns when the related revenue was recognized.

 

The Company also offered sales incentives through various programs, consisting primarily of volume incentive rebates and sales incentive reserves. Volume incentive rebates were provided to certain customers based on contractually agreed upon percentages once certain thresholds had been met. Sales incentive reserves were computed based on historical trending and budgeted discount percentages, which were typically based on historical discount rates with adjustments for any known changes, such as future promotions or one-time historical promotions that would not repeat for each customer. The Company recorded sales incentive reserves and volume rebate reserves as a reduction to revenue.

 

 

With the adoption of ASC 606, the Company reviewed its previous revenue recognition policy as described above and under ASC 606 the Company determined that there were no material changes resulting from the adoption. Revenue would be recognized when control of the promised goods or services is transferred to the Company’s customers in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods or services. This is consistent with the revenue recognition policy previously used by the Company. The Company also reviewed the timing and recognition of accounts receivable within the different distribution channels for which the Company generates revenue.

 

During the three months ended June 30, 2018 and 2017, the Company recorded discounts, and to a lesser degree, sales returns, totaling $5.2 million and $4.3 million, respectively, which accounted for 16% and 14% of gross revenue in each period, respectively. During the six months ended June 30, 2018 and 2017, the Company recorded discounts, and to a lesser degree, sales returns, totaling $10.1 million and $12.3 million, respectively, which accounted for 16% and 19% of gross revenue in each period, respectively.

 

Concentrations

 

Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of cash and accounts receivable. The Company minimizes its credit risk associated with cash by periodically evaluating the credit quality of its primary financial institution. The cash balance at times may exceed federally insured limits. Management believes the financial risk associated with these balances is minimal and has not experienced any losses to date.

 

Significant customers are those that represent more than 10% of the Company’s net revenue or accounts receivable for each period presented. For each significant customer, revenue as a percentage of total revenue is as follows:

 

	Percentage of Net Revenue for the Three Months Ended June 30,		Percentage of Net Revenue for the Six Months Ended June 30,		Percentage of Net Accounts Receivable as of
	2018	2017	2018	2017	June 30, 2018	December 31, 2017
Customers
Costco Wholesale Corporation	21%	17%	29%	26%	18%	21%
Amazon	21%	12%	15%	*	18%	14%
iHerb	13%	*	*	*	*	*

 

Share-Based Payments and Stock-Based Compensation

 

Share-based compensation awards, including stock options and restricted stock awards, are recorded at estimated fair value on the applicable award’s grant date, based on estimated number of awards that are expected to vest. The grant date fair value is amortized on a straight-line basis over the time in which the awards are expected to vest, or immediately if no vesting is required. Share-based compensation awards issued to non-employees for services are recorded at either the fair value of the services rendered or the fair value of the share-based payments whichever is more readily determinable. The fair value of restricted stock awards is based on the fair value of the stock underlying the awards on the grant date as there is no exercise price.

 

The fair value of stock options is estimated using the Black-Scholes option-pricing model. The determination of the fair value of each stock award using this option-pricing model is affected by the Company’s assumptions regarding a number of complex and subjective variables. These variables include, but are not limited to, the expected stock price volatility over the term of the awards and the expected term of the awards based on an analysis of the actual and projected employee stock option exercise behaviors and the contractual term of the awards. Due to the Company’s limited experience with the expected term of options, the simplified method was utilized in determining the expected option term as prescribed in Staff Accounting Bulletin No. 110. The Company recognizes stock-based compensation expense over the requisite service period, which is generally consistent with the vesting of the awards, based on the estimated fair value of all stock-based payments issued to employees and directors that are expected to vest.

 

Recent Accounting Pronouncements

 

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842), which supersedes Topic 840, Leases (“ASU 2016-02”). The guidance in this new standard requires lessees to put most leases on their balance sheets but recognize expenses on their income statements in a manner similar to the current accounting and eliminates the current real estate-specific provisions for all entities. The guidance also modifies the classification criteria and the accounting for sales-type and direct financing leases for lessors. ASU 2016-02 is effective for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years, with early adoption permitted. The Company is currently evaluating the impact of the adoption of ASU 2016-02.

 

In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments – Credit Losses (Topic 326), among other things, these amendments require the measurement of all expected credit losses for financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable forecasts. Financial institutions and other organizations will now use forward-looking information to better inform their credit loss estimates. ASU 2016-13 is effective for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. The Company is currently evaluating the impact of the adoption of ASU 2016-13.

 

Note 3. Fair Value of Financial Instruments

 

Management believes the fair values of the obligations under the secured borrowing arrangements and the convertible note with Mr. Drexler approximate carrying value because the debt carries market rates of interest available to the Company. The Company’s remaining financial instruments consisted primarily of accounts receivable, accounts payable, accrued liabilities and accrued restructuring charges, all of which are short-term in nature with fair values approximating carrying value. As of June 30, 2018 and December 31, 2017, the Company held no assets or liabilities that required re-measurement at fair value on a recurring basis.

 

Note 4. Restructuring

 

As part of an effort to better focus and align the Company’s resources toward profitable growth, on August 24, 2015, the Board authorized the Company to undertake steps to commence a restructuring of the business and operations, which concluded during the third quarter of 2016.

 

The following table illustrates the provision of the restructuring charges and the accrued restructuring charges balance as of June 30, 2018 (in thousands):

 

	Contract Termination Costs	Purchase Commitment of Discontinued Inventories Not Yet Received	Abandoned Lease Facilities	Total
Balance as of December 31, 2017	$308	$175	$232	$715
Expensed	—	—	201	201
Cash payments	—	—	(272)	(272)
Balance as of June 30, 2018	308	175	161	644

 

 

The total future payments under the restructuring plan as of June 30, 2018 are as follows (in thousands):

 

	For the Years Ending December 31,
Outstanding Payments	2018	2019	2020	Total
Contract termination costs	$308	$—	$—	$308
Purchase commitment of discontinued inventories not yet received	175	—	—	175
Abandoned leased facilities	37	92	32	161
Total future payments	$520	$92	$32	$644

 

Note 5. Balance Sheet Components

Inventory

 

Inventory consisted solely of finished goods as of June 30, 2018 and December 31, 2017.

 

The Company records charges for obsolete and slow-moving inventory based on the age of the product as determined by the expiration date or otherwise determined to be obsolete. Products within one year of their expiration dates are considered for write-off purposes. Historically, the Company has had minimal returns with established customers. Other than write-off of inventory during restructuring activities, the Company incurred insignificant inventory write-offs during the six months ended June 30, 2018 and 2017. Inventory write-downs, once established, are not reversed as they establish a new cost basis for the inventory.

 

Property and Equipment

 

Property and equipment consisted of the following as of June 30, 2018 and December 31, 2017 (in thousands):

 

	As of June 30, 2018	As of December 31, 2017
Furniture, fixtures and equipment	$3,633	$3,597
Leasehold improvements	2,074	2,044
Manufacturing and lab equipment	3	3
Vehicles	86	86
Displays	483	485
Website	462	462
Property and equipment, gross	6,741	6,677
Less: accumulated depreciation and amortization	(5,250)	(4,855)
Property and equipment, net	$1,491	$1,822

 

Depreciation and amortization expense related to property and equipment was $0.2 million and $0.3 million for the three months ended June 30, 2018 and 2017, respectively, and $0.4 million and $0.6 million for the six months ended June 30, 2018 and 2017, respectively, which is included in “Selling, general and administrative” expense in the accompanying Condensed Consolidated Statements of Operations.

 

 

Intangible Assets

 

Intangible assets consisted of the following (in thousands):

 

	As of June 30, 2018
	Gross Value	Accumulated Amortization	Net Carrying Value	Remaining Weighted-AverageUseful Lives(years)
Amortized Intangible Assets
Brand (apparel rights)	$2,244	$(1,087)	$1,157	3.6
Total intangible assets	$2,244	$(1,087)	$1,157

 

	As of December 31, 2017
	Gross Value	Accumulated Amortization	Net Carrying Value	Remaining Weighted-AverageUseful Lives(years)
Amortized Intangible Assets
Brand (apparel rights)	$2,244	$(927)	$1,317	4.1
Total intangible assets	$2,244	$(927)	$1,317

 

Intangible assets amortization expense was $0.1 million for each of the three months ended June 30, 2018 and 2017, respectively, and $0.2 million for each of the six months ended June 30, 2018 and 2017, respectively, which is included in “Selling, general and administrative” expense in the accompanying Condensed Consolidated Statements of Operations.

As of June 30, 2018, the estimated future amortization expense of intangible assets is as follows (in thousands):

For the Year Ending December 31,
Remainder of 2018	$161
2019	321
2020	321
2021	321
2022	33
Total amortization expense	$1,157

 

 

Note 6. Interest and Other Expense, net

 

For the three and six months ended June 30, 2018 and 2017, “Interest and other expense, net” consisted of the following (in thousands):

 

	For the Three Months Ended June 30,		For the Six Months Ended June 30,
	2018	2017	2018	2017
Interest and other expense, net:
Interest expense, related party	$(552)	$(434)	$(1,092)	$(856)
Interest expense, related party debt discount	(155)	(153)	(403)	(307)
Interest expense, other	(65)	(3)	(132)	(8)
Interest expense, secured borrowing arrangement	(309)	(121)	(655)	(225)
Foreign currency transaction (loss) gain	(81)	45	(193)	33
Other	(3)	(24)	2	(305)
Total interest and other expense, net	$(1,165)	$(690)	$(2,473)	$(1,668)

 

Note 7. Debt

As of June 30, 2018 and December 31, 2017, the Company’s debt consisted of the following (in thousands):

 

	As of June 30, 2018	As of December 31,2017
2017 Refinanced Convertible Note due December 31, 2019 with a related party	$18,000	$18,000
Obligations under secured borrowing arrangement	2,787	5,385
Secured line of credit	2,000	3,000
Unamortized debt discount with a related party	(929)	(1,331)
Total debt	21,858	25,054
Less: current portion	(4,787)	(8,385)
Long term debt	$17,071	$16,669

 

Related-Party Notes Payable

On November 3, 2017, the Company entered into the Refinancing with Mr. Ryan Drexler, the Company’s Chairman of the Board of Directors, Chief Executive Officer and President. As part of the Refinancing, the Company issued to Mr. Drexler an amended and restated convertible secured promissory note (the “Refinanced Convertible Note”) in the original principal amount of $18,000,000, which amends and restates (i) a convertible secured promissory note dated as of December 7, 2015, and amended as of January 14, 2017, in the original principal amount of $6,000,000 with an interest rate of 8% prior to the amendment and 10% following the amendment (the “2015 Convertible Note”), (ii) a convertible secured promissory note dated as of November 8, 2016, in the original principal amount of $11,000,000 with an interest rate of 10% (the “2016 Convertible Note”) , and (iii) a secured demand promissory note dated as of July 27, 2017, in the original principal amount of $1,000,000 with an interest rate of 15% (the “2017 Note”, and together with the 2015 Convertible Note and the 2016 Convertible Note, collectively, the “Prior Notes”). The due date of the 2015 Convertible Note and the 2016 Convertible Note was November 8, 2017. The 2017 Note was due on demand.

The $18.0 million Refinanced Convertible Note bears interest at the rate of 12% per annum. Interest payments are due on the last day of each quarter. At the Company’s option (as determined by its independent directors), the Company may repay up to one-sixth of any interest payment by either adding such amount to the principal amount of the note or by converting such interest amount into an equivalent amount of the Company’s common stock. Any interest not paid when due shall be capitalized and added to the principal amount of the Refinanced Convertible Note and bear interest on the applicable interest payment date along with all other unpaid principal, capitalized interest, and other capitalized obligations.

 

Both the principal and the interest under the Refinanced Convertible Note are due on December 31, 2019, unless converted earlier.

Mr. Drexler may convert the outstanding principal and accrued interest into shares of the Company’s common stock at a conversion price of $1.11 per share at any time. The Company may prepay the Refinanced Convertible Note by giving Mr. Drexler between 15 and 60 days’ notice depending upon the specific circumstances, subject to Mr. Drexler’s conversion right.

The Refinanced Convertible Note contains customary events of default, including, among others, the failure by the Company to make a payment of principal or interest when due. Following an event of default, interest will accrue at the rate of 14% per annum. In addition, following an event of default, any conversion, redemption, payment or prepayment of the Refinanced Convertible Note will be at a premium of 105%. The Refinanced Convertible Note also contains customary restrictions on the ability of the Company to, among other things, grant liens or incur indebtedness other than certain obligations incurred in the ordinary course of business. The restrictions are also subject to certain additional qualifications and carveouts, as set forth in the Refinanced Convertible Note. The Refinanced Convertible Note is subordinated to certain other indebtedness of the Company.

As part of the Refinancing, the Company and Mr. Drexler entered into a restructuring agreement (the “Restructuring Agreement”) pursuant to which the parties agreed to enter into the Refinanced Convertible Note and to amend and restate the security agreement pursuant to which the Prior Notes were secured by all of the assets and properties of the Company and its subsidiaries whether tangible or intangible, by entering into the Third Amended and Restated Security Agreement (the “Amended Security Agreement”). Pursuant to the Restructuring Agreement, the Company agreed to pay, on the effective date of the Refinancing, all outstanding interest on the Prior Notes through November 8, 2017 and certain fees and expenses incurred by Mr. Drexler in connection with the Restructuring.

In connection with the refinancing, the Company recorded a debt discount of $1.2 million. The debt discount is equal to the change in the fair value of the conversion option between the Refinanced Convertible Note and the Prior Notes. The fair value of the conversion option was determined using a Monte Carlo simulation and the model of stock price behavior known as GBM which simulates a future period as a random step from a previous period. Significant assumptions were: expected stock price premium of 40%, expected trading days of 252 days, and volatility of 60%.

In addition, the Refinanced Convertible Note contains two embedded derivatives for default interest and an event of default put. Due to the unlikely event of default, the embedded derivatives have a de minimis value as of June 30, 2018.

For the three months ended June 30, 2018 and 2017, interest expense, including the amortization of debt discount, related to the related party convertible secured promissory notes was $0.7 million and $0.6 million, respectively. For the six months ended June 30, 2018 and 2017, interest expense, including the amortization of debt discount, related to the related party convertible secured promissory notes was $1.5 million and $1.2 million, respectively. During the six months ended June 30, 2018 and 2017, $0.8 million and $0.9 million, respectively, in interest was paid in cash to Mr. Drexler.

 

Inventory Financing

On October 6, 2017, the Company ( “Borrower”) entered into a Loan and Security Agreement (“Security Agreement”) with Crossroads Financial Group, LLC (“Crossroads”). Pursuant to the Security Agreement, the Company may borrow up to 70% of its Inventory Cost or up to 75% of Net Orderly Liquidation Value (each as defined in the Security Agreement), up to a maximum amount of $3.0 million at an interest rate of 1.5% per month, subject to a minimum monthly fee of $22,500. The initial term of the Security Agreement was six months from the date of execution, and such initial term is extended automatically in six-month increments, unless earlier terminated pursuant to the terms of the Security Agreement. The Security Agreement contains customary events of default, including, among others, the failure to make payments on amounts owed when due, default under any other material agreement or the departure of Mr. Drexler. The Security Agreement also contains customary restrictions on the ability of the Company to, among other things, grant liens, incur debt and transfer assets. Under the Security Agreement, the Company has agreed to grant Crossroads a security interest in all of the Company’s present and future accounts, chattel paper, goods (including inventory and equipment), instruments, investment property, documents, general intangibles, intangibles, letter of credit rights, commercial tort claims, deposit accounts, supporting obligations, documents, records and the proceeds thereof. As of June 30, 2018, the Company owed $2.0 million to Crossroads under this agreement.

 

Secured Borrowing Arrangement

 

In January 2016, the Company entered into a Purchase and Sale Agreement (the “Purchase and Sale Agreement”) with Prestige Capital Corporation (“Prestige”) pursuant to which the Company agreed to sell and assign and Prestige agreed to buy and accept, certain accounts receivable owed to the Company (“Accounts”). Under the terms of the Purchase and Sale Agreement, upon the receipt and acceptance of each assignment of Accounts, Prestige will pay the Company 80% of the net face amount of the assigned Accounts, up to a maximum total borrowings of $12.5 million subject to sufficient amounts of accounts receivable to secure the loan. The remaining 20% will be paid to the Company upon collection of the assigned Accounts, less any chargeback, disputes, or other amounts due to Prestige. Prestige’s purchase of the assigned Accounts from the Company will be at a discount fee which varies based on the number of days outstanding from the assignment of Accounts to collection of the assigned Accounts. In addition, the Company granted Prestige a continuing security interest in and lien upon all accounts receivable, inventory, fixed assets, general intangibles and other assets. The Purchase and Sale Agreement’s term was extended to November 30, 2018 at which point the term now renews automatically for successive four-month periods unless either party receives written notice of cancellation from the other, at minimum, thirty days prior to the expiration date. At June 30, 2018, we had approximately $2.8 million of outstanding borrowings under the Purchase and Sale Agreement.

 

During the three months ended June 30, 2018, the Company assigned to Prestige accounts with an aggregate face amount of approximately $12.9 million, for which Prestige paid to the Company approximately $10.3 million in cash. During the three months ended June 30, 2018, $13.1 million was repaid to Prestige, including fees and interest. During the six months ended June 30, 2018, the Company assigned to Prestige accounts with an aggregate face amount of approximately $29.7 million, for which Prestige paid to the Company approximately $23.8 million in cash. During the three months ended June 30, 2018, $26.4 million was repaid to Prestige, including fees and interest.

 

During the three months ended June 30, 2017, the Company assigned to Prestige accounts with an aggregate face amount of approximately $9.0 million, for which Prestige paid to the Company approximately $7.2 million in cash. During the three months ended June 30, 2017, $13.6 million was subsequently repaid to Prestige, including fees and interest. During the six months ended June 30, 2017, the Company assigned to Prestige accounts with an aggregate face amount of approximately $14.5 million, for which Prestige paid to the Company approximately $12.1 million in cash. During the six months ended June 30, 2017, $11.8 million was subsequently repaid to Prestige, including fees and interest.

 

Note 8. Commitments and Contingencies

 

Operating Leases

 

The Company leases office and warehouse facilities under operating leases, which expire at various dates through 2022. The amounts reflected in the table below are for the aggregate future minimum lease payments under non-cancelable facility operating leases for properties that have not been abandoned as part of the restructuring plan. See Note 4 for additional details regarding the restructured leases. Under lease agreements that contain escalating rent provisions, lease expense is recorded on a straight-line basis over the lease term. During the three months ended June 30, 2018 and 2017, rent expense was $0.2 million and $0.1 million, respectively. During the six months ended June 30, 2018 and 2017, rent expense was $0.5 million and $0.2 million, respectively.

 

 

As of June 30, 2018, future minimum lease payments are as follows (in thousands):

 

For the Year Ending December 31,
Remainder of 2018	$431
2019	760
2020	692
2021	481
2022	369
Thereafter	—
Total minimum lease payments	$2,733

 

Capital Leases

As of June 30, 2018, the Company was leasing two vehicles under a fleet leasing agreement which were included in “Property and equipment, net” in the accompanying Consolidated Balance Sheets. The original cost of leased assets was $86,000 and the associated accumulated depreciation was $67,000 as of June 30, 2018. The Company also leases manufacturing and warehouse equipment under capital leases, which expire at various dates through February 2020.

 

As of June 30, 2018 and December 31, 2017, short-term capital lease liabilities of $105,000 and $126,000, respectively, were included as a component of current accrued liabilities, and the long-term capital lease liabilities of $98,000 and $146,000, respectively, were included as a component of long-term liabilities in the accompanying Condensed Consolidated Balance Sheets.

 

As of June 30, 2018, the Company’s future minimum lease payments under capital lease agreements, are as follows (in thousands):

 

For the Year Ending December 31,
Remainder of 2018	$62
2019	101
2020	50
Total minimum lease payments	213
Less amounts representing interest	(10)
Present value of minimum lease payments	$203

 

Purchase Commitment

 

Upon the completion of the sale of BioZone, the Company entered into a manufacturing and supply agreement whereby the Company is required to purchase a minimum of approximately $2.5 million of products per year from BioZone annually for an initial term of three years. If the minimum order quantities of specific products are not met, a $3.0 million minimum purchase of other products must be met in order to waive the shortfall, which is at 25% of the realized shortfall. Due to the timing of achieving the minimum purchase quantities, we are below these targets. As a result, we have provided for the estimated purchase commitment shortfall adjustment in the three and six months ended June 30, 2018.

 

Settlements

 

Manchester City Football Group

 

The Company was engaged in a dispute with City Football Group Limited (“CFG”), the owner of Manchester City Football Group, concerning amounts allegedly owed by the Company under a sponsorship agreement with CFG (the “Sponsorship Agreement”). In August 2016, CFG commenced arbitration in the United Kingdom against the Company, seeking approximately $8.3 million for the Company’s purported breach of the Sponsorship Agreement.

 

 

On July 28, 2017, the Company approved a Settlement Agreement (the “CFG Settlement Agreement”) with CFG effective July 7, 2017. The CFG Settlement Agreement represents a full and final settlement of all litigation between the parties. Under the terms of the agreement, we agreed to pay CFG a sum of $3 million, consisting of a $1 million payment that was advanced by a related party on July 7, 2017, a $1 million installment paid on July 7, 2018 and a subsequent $1 million installment payment to be paid by July 7, 2019. The 2018 payment is accrued in current liabilities and the 2019 payment is accrued in other long-term liabilities.

 

The Company recorded a charge in its Statement of Operations for the year ended December 31, 2017 for approximately $1.5 million, representing the discounted value of the unrecorded settlement amount. During both the three and six months ended June 30, 2018, the Company recorded a charge of $0.1, representing imputed interest.

 

Former Executive Lawsuit

 

The Company was engaged in a dispute with Mr. Richard Estalella (“Estalella”) concerning amounts allegedly owed by the Company under an employment agreement with Estalella. Estalella was seeking certain equitable relief and unspecified damages. On May 7, 2018, the Court vacated the trial in contemplation of the parties’ settlement of this matter.

 

On June 19, 2018, the Company approved a settlement agreement (the “Estalella Settlement Agreement”) with Estalella, concerning amounts allegedly owed by the Company under an employment agreement with Estalella. The Estalella Settlement Agreement represents a full and final settlement of all litigation between the parties. Under the terms of the agreement, the Company has agreed to pay Estalella a sum of $925,000, consisting of a $325,000 payment that was made in July 2018, and subsequent payments of $150,000 installments to be paid by October 2018, January 2019, April 2019 and July 2019, respectively. The payments due prior to June 30, 2019 are accrued in current liabilities and the July 2019 payment is accrued in other long-term liabilities. Additionally, Estalella retained ownership of 350,000 shares of restricted stock that were in dispute, of which only 17,000 have been reflected in our total shares outstanding. As such the Company has increased the total amount of share outstanding by 333,000 shares for the period ended June 30, 2018.

 

The Company recorded a settlement recovery in its Statement of Operations for the three and six months ended June 30, 2018 for approximately $2.7 million, representing the reversal of accrued payroll the Company previously recorded for compensation related to the Estalella employment agreement.

 

Contingencies

 

In the normal course of business or otherwise, the Company may become involved in legal proceedings. The Company will accrue a liability for such matters when it is probable that a liability has been incurred and the amount can be reasonably estimated. When only a range of possible loss can be established, the most probable amount in the range is accrued. If no amount within this range is a better estimate than any other amount within the range, the minimum amount in the range is accrued. The accrual for a litigation loss contingency might include, for example, estimates of potential damages, outside legal fees and other directly related costs expected to be incurred. As of June 30, 2018, the Company was involved in the following material legal proceedings described below.

 

ThermoLife

 

In January 2016, ThermoLife International LLC (“ThermoLife”), a supplier of nitrates to MusclePharm, filed a complaint against the Company in Arizona state court. In its complaint, ThermoLife alleges that the Company failed to meet minimum purchase requirements contained in the parties’ supply agreement and seeks monetary damages for the deficiency in purchase amounts. In March 2016, the Company filed an answer to ThermoLife’s complaint, denying the allegations contained in the complaint, and filed a counterclaim alleging that ThermoLife breached its express warranty to MusclePharm because ThermoLife’s products were defective and could not be incorporated into the Company’s products. Therefore, the Company believes that ThermoLife’s complaint is without merit. The lawsuit continues to be in the discovery phase.

 

 

Insurance Carrier Lawsuit

The Company is engaged in litigation with an insurance carrier, Liberty Insurance Underwriters, Inc. (“Liberty”), arising out of Liberty’s denial of coverage. In 2014, the Company sought coverage under an insurance policy with Liberty for claims against directors and officers of the Company arising out of an investigation by the Securities and Exchange Commission (“SEC”). Liberty denied coverage, and, on February 12, 2015, the Company commenced litigation in Colorado state court, claiming wrongful and unreasonable denial of coverage for the cost and expenses incurred in connection with the SEC investigation and related matters. Liberty removed the complaint to the United States District Court for the District of Colorado, which in August 2016 granted Liberty’s motion for summary judgment, denying coverage and dismissing the Company’s claims with prejudice. That judgment was affirmed on appeal by the United States Court of Appeals for the Tenth Circuit in October 2017. The Company subsequently sought coverage from Liberty for expenses relating to that portion of the SEC’s investigation that post-dated the SEC’s issuance of Wells Notices to two former officers of the Company, as well as for expenses incurred in defense of the Company’s officers and directors in a derivative action commenced by Brian Gartner. Liberty has disputed the extent to which those expenses are covered under its policy, and the Company has commenced a coverage action against Liberty for those expenses in the United States District Court for the Southern District of New York. That action remains pending.

IRS Audit

 

On April 6, 2016, the Internal Revenue Service (“IRS”) selected the Company’s 2014 Federal Income Tax Return for audit. As a result of the audit, the IRS proposed certain adjustments with respect to the tax reporting of the Company’s former executives’ 2014 restricted stock grants. Due to the Company’s current and historical loss position, the proposed adjustments would have no material impact on its Federal income tax. On October 5, 2016, the IRS commenced an audit of the Company’s employment and withholding tax liability for 2014. The IRS is contending that the Company inaccurately reported the value of the restricted stock grants and improperly failed to provide for employment taxes and federal tax withholding on these grants. In addition, the IRS is proposing certain penalties associated with the Company’s filings. On April 4, 2017, the Company received a “30-day letter” from the IRS asserting back taxes and penalties of approximately $5.3 million, of which $0.4 million related to employment taxes and $4.9 million related to federal tax withholding and penalties. Additionally, the IRS is asserting that the Company owes information reporting penalties of approximately $2.0 million. The Company’s counsel has submitted a formal protest to the IRS disputing on several grounds all of the proposed adjustments and penalties on the Company’s behalf, and the Company is pursuing this matter vigorously through the IRS appeal process. Due to the uncertainty associated with determining the Company’s liability for the asserted taxes and penalties, if any, and to the Company’s inability to ascertain with any reasonable degree of likelihood, as of the date of this report, the outcome of the IRS appeals process, the Company has recorded an estimate for its potential liability, if any, associated with these taxes.

 

Sponsorship and Endorsement Contract Liabilities

 

The Company has various non-cancelable endorsement and sponsorship agreements with terms expiring through 2019. The total value of future contractual payments as of June 30, 2018 are as follows (in thousands):

 

	For the Years Ending December 31,
	Remainder of 2018	2019	Total
Outstanding Payments
Endorsement	$183	$96	$279
Sponsorship	63	55	118
Total future payments	$246	$151	$397

 

 

Note 9. Stockholders’ Deficit

Common Stock

 

For the six months ended June 30, 2018, the Company had the following transactions related to its common stock including restricted stock awards (in thousands, except share and per share data):

 

Transaction Type	Quantity (Shares)	Valuation ($)	Range of Value per Share
Stock issued to related party for interest	81,133	$53	0.65
Total	81,133	$53	$0.65

 

The fair value of all stock issuances above is based upon the quoted closing trading price on the date of issuance.

 

Common stock outstanding as of June 30, 2018 and December 31, 2017 includes shares legally outstanding even if subject to future vesting.

 

Warrants

 

In November 2016, the Company issued a warrant to purchase 1,289,378 shares of its common stock to the parent company of Capstone related to the settlement of a dispute between the Company and Capstone. The exercise price of this warrant was $1.83 per share, with a contractual term of four years. The Company has valued this warrant by utilizing the Black-Scholes model at approximately $1.8 million with the following assumptions: contractual life of four years, risk free interest rate of 1.27%, dividend yield of 0%, and expected volatility of 118.4%.

 

In July 2014, the Company issued a warrant to purchase 100,000 shares of its common stock related to an endorsement agreement. The exercise price of this warrant was $11.90 per share, with a contractual term of five years.

 

Note 10. Stock-Based Compensation

 

Restricted Stock

 

The Company’s stock-based compensation for the three months ended June 30, 2018 and 2017 consist primarily of restricted stock awards. The activity of restricted stock awards granted to employees, executives and Board members was as follows:

 

	Unvested Restricted Stock Awards
	Number of Shares	Weighted Average Grant Date Fair Value
Unvested balance – December 31, 2017	487,267	$2.32
Granted	—	—
Vested	(426,846)	1.94
Cancelled	—	—
Unvested balance – June 30, 2018	60,421	5.00

 

The Company issued 20,162 shares of restricted stock to its Board members for the three months ended June 30, 2017. The total fair value of restricted stock awards granted to employees and the Board was $0.1 million and $0.7 million for the three and six months ended June 30, 2017. There were no restricted stock awards granted during the three or six months ended June 30, 2018. As of June 30, 2018, the total unrecognized expense for unvested restricted stock awards, net of expected forfeitures, was $0.1 million, which is expected to be amortized over a weighted average period of 0.5 years.

 

 

Restricted Stock Awards Issued to Ryan Drexler, Chairman of the Board, Chief Executive Officer and President

 

In January 2017, the Company issued Mr. Drexler 350,000 shares of restricted stock pursuant to an Amended and Restated Executive Employment Agreement dated November 18, 2016 with a grant date value of $0.7 million based upon the closing price of the Company’s common stock on the date of issuance. These shares of restricted stock vested in full upon the first anniversary of the grant date.

 

Accelerated Vesting of Restricted Stock Awards Related to Terminations of Employment

 

In March 2017, Brent Baker, the Company’s former Executive Vice President of International Business, terminated employment with the Company. In connection with his termination of employment in March 2017, 10,000 shares of restricted stock held by Mr. Baker vested in full upon his termination of employment in accordance with the original grant terms. In connection with the accelerated vesting of these restricted stock awards, the Company recognized stock compensation expense of $42,902, which is included in “Salaries and Benefits” in the accompanying Consolidated Statements of Operations for the three months ended June 30, 2017.

 

Stock Options

 

The Company may grant options to purchase shares of the Company’s common stock to certain employees and directors pursuant to the 2015 Incentive Compensation Plan (the “2015 Plan”). Under the 2015 Plan, all stock options are granted with an exercise price equal to or greater than the fair market value of a share of the Company’s common stock on the date of grant. Vesting is generally determined by the Compensation Committee of the Board within limits set forth in the 2015 Plan. No stock option will be exercisable more than ten years after the date it is granted.

 

In February 2016, the Company issued options to purchase 137,362 shares of its common stock to Mr. Drexler, the Company’s Chairman of the Board, Chief Executive Officer, and President, and options to purchase 54,945 shares of its common stock to Michael Doron, the former Lead Director of the Board. Upon resignation from the Board of Directors in June 2017, Mr. Doron forfeited 20,604 of the options issued. These stock options were granted with an exercise price of $1.89 per share, a contractual term of 10 years and a grant date fair value of $1.72 per share, or $0.3 million in the aggregate, which is amortized on a straight-line basis over the vesting period of two years. The Company determined the fair value of the stock options using the Black-Scholes model. The table below sets forth the assumptions used in valuing such options.

	For the Year Ended  December 31, 2016
Expected term of options	6.5 years
Expected volatility-range used	118.4%-131.0%
Expected volatility-weighted average	125.7%
Risk-free interest rate-range used	1.27%-1.71%

 

For the three months ended June 30, 2017, the Company recorded stock compensation expense related to options of $12,000. The Company did not record stock compensation expense related to options for the three months ended June 30, 2018. For the six months ended June 30, 2018 and 2017, the Company recorded stock compensation expense related to options of $16,000 and $83,000, respectively.

 

Note 11. Net Loss per Share

 

Basic net loss per share is computed by dividing net loss for the period by the weighted average number of shares of common stock outstanding during each period. There was no dilutive effect for the outstanding potentially dilutive securities for the three or six months ended June 30, 2018 and 2017, respectively, as the Company reported a net loss for both periods.

 

The following table sets forth the computation of the Company’s basic and diluted net loss per share for the periods presented (in thousands, except share and per share data):

 

 

	For the Three Months Ended June 30,		For the Six Months Ended June 30,
	2018	2017	2018	2017
Net loss	$(1,074)	$(3,149)	$(3,377)	$(6,298)
Weighted average common shares used in computing net loss per share, basic and diluted	14,701,473	13,845,301	14,658,812	13,809,603
Net loss per share, basic and diluted	$(0.07)	$(0.23)	$(0.23)	$(0.46)

 

Diluted net income per share is computed by dividing net income for the period by the weighted average number of shares of common stock, common stock equivalents and potentially dilutive securities outstanding during each period. The Company uses the treasury stock method to determine whether there is a dilutive effect of outstanding potentially dilutive securities, and the if-converted method to assess the dilutive effect of the convertible notes.

 

There was no dilutive effect for the outstanding awards for the three and six months ended June 30, 2018 and 2017, respectively, as the Company reported a net loss for all periods.

 

Total outstanding potentially dilutive securities were comprised of the following:

	As of June 30,
	2018	2017
Stock options	171,703	192,307
Warrants	1,389,378	1,389,378
Unvested restricted stock	60,421	670,170
Convertible notes	16,216,216	8,619,624
Total common stock equivalents	17,837,718	10,871,479

 

Note 12. Income Taxes

 

The Company recorded a tax expense of $34,000 and $76,000 for the three months ended June 30, 2018 and 2017, respectively, and $103,000 and $104,000 for the six months ended June 30, 2018 and 2017, respectively.

 

Income taxes are provided for the tax effects of transactions reported in the Condensed Consolidated Financial Statements and consist of taxes currently due. Deferred taxes relate to differences between the basis of assets and liabilities for financial and income tax reporting which will be either taxable or deductible when the assets or liabilities are recovered or settled. In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred income tax assets will not be realized. The ultimate realization of deferred income tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred income tax liabilities, projected future taxable income, and tax planning strategies in making this assessment. Based on consideration of these items, management has established a full valuation allowance as it is more likely than not that the tax benefits will not be realized as of June 30, 2018.

Note 13. Segments, Geographical Information

 

The Company’s chief operating decision maker reviews financial information presented on a consolidated basis for purposes of allocating resources and evaluating financial performance. As such, the Company currently has a single reporting segment and operating unit structure. In addition, substantially all long-lived assets are attributable to operations in the U.S. for both periods presented.

 

 

Revenue, net by geography is based on the Company addresses of the customers. The following table sets forth revenue, net by geographic area (in thousands):

 

	For the Three Months Ended June 30,		For the Six Months Ended June 30,
	2018	2017	2018	2017
Revenue, net:
United States	$17,402	$14,677	$32,702	$32,267
International	9,702	11,515	20,949	19,934
Total revenue, net	$27,104	$26,192	$53,651	$52,201

 

Note 14. Subsequent Events

 

GAAP requires an entity to disclose events that occur after the balance sheet date but before financial statements are issued or are available to be issued (“subsequent events”) as well as the date through which an entity has evaluated subsequent events. There are two types of subsequent events. The first type consists of events or transactions that provide additional evidence about conditions that existed at the date of the balance sheet, including the estimates inherent in the process of preparing financial statements, (“recognized subsequent events”). The second type consists of events that provide evidence about conditions that did not exist at the date of the balance sheet but arose subsequent to that date (“non-recognized subsequent events”).

 

Recognized Subsequent Events

 

None.

 

Unrecognized Subsequent Events

 

None.

 

ITEM 2. 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 Condensed Consolidated Financial Statements and related notes included elsewhere in this Quarterly Report on Form 10-Q (the “Form 10-Q”), and with our audited consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2017, as filed with the Securities and Exchange Commission on April 2, 2018, or the 2017 Form 10-K. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed below. Factors that could cause or contribute to such differences include, but are not limited to, those identified below and those discussed in the section entitled “Risk Factors” included elsewhere in this Form 10-Q. Except as otherwise indicated herein, the terms “Company,” “we,” “our” and “us” refer to MusclePharm Corporation and its subsidiaries.

 

Overview

 

We are a scientifically-driven performance lifestyle company that develops, manufactures, markets and distributes branded sports nutrition products and nutritional supplements. We offer a broad range of performance powders, bars and capsules, which seek to help athletes of all types achieve a heightened level of performance and satisfaction. Our portfolio consists of sports nutrition staples, such as protein powders and bars, and preworkout powders, as well as well-known supplements like creatine, BCAA, fish oil, a multi-vitamin and more. These products fall under globally-recognized brands, MusclePharm® and FitMiss®, which are marketed and sold in more than 100 countries globally. Our corporate headquarters is located in Burbank, CA.

 

Our products are clinically-developed through a six-stage research process, and all of our manufactured products are rigorously vetted for banned substances by the leading quality assurance program, Informed-Choice. While we initially drove growth in the Specialty retail channel, in recent years we have expanded our focus to drive sales and retailer growth across leading e-commerce, Food Drug & Mass, and Club retail channels, including Amazon, Costco, Kroger, Walgreens and 7-Eleven. Our sales in the e-commerce space grew approximately 250% in 2017 compared to the 2016 and we expect to see continued growth in 2018. Additionally, BodyBuilding.com named our Combat Crunch Bar as Protein Bar of the Year in each of 2015, 2016 and 2017.

 

Outlook

 

As we continue to execute our growth strategy and focus on our core operations, we anticipate both continued improvement in our operating margins and expense structure, as well as topline sales advancement. The termination of the Arnold Schwarzenegger product-line licensing agreement, discontinuance of unprofitable SKUs and product families, as well as the migration to new product suppliers have impacted revenue growth for the short-term. However, we anticipate revenues and growth margin to strengthen as we increase focus on our core MusclePharm products. In addition, the sale of our wholly-owned subsidiary, BioZone, in May 2016, enabled us to further narrow our focus on core products, and further innovate and develop new products. We also anticipate improved results from advertising and promotions expenses as we focus on effective marketing and advertising strategies, having moved away from costly celebrity endorsements.

 

Management’s Plans with Respect to Liquidity and Capital Resources

 

Management believes the restructuring plan, the continued reduction in ongoing operating costs and expense controls, and the aforementioned growth strategy, will enable us to ultimately achieve profitability. We have reduced our operating expenses sufficiently and believe that our ongoing sources of revenue together with our access to capital will be sufficient to cover these expenses for the foreseeable future.

 

As of June 30, 2018, we had a stockholders’ deficit of $15.6 million and recurring losses from operations. To manage cash flow, we entered into a secured borrowing arrangement, pursuant to which we have the ability to borrow up to $12.5 million subject to sufficient amounts of accounts receivable to secure the loan. The Agreement’s term has been extended to November 30, 2018, at which point the term now renews automatically for successive four-month periods unless either party receives written notice of cancellation from the other, at a minimum thirty days prior to the expiration date. In October 2017, we also entered into a loan and security agreement to borrow against our inventory up to a maximum of $3.0 million for an initial six-month term which was automatically extended for six additional months. As of June 30, 2018, we owed $2.0 million on this credit line.

 

 

On November 3, 2017, we entered into a refinancing transaction with Mr. Ryan Drexler, our Chairman of the Board, Chief Executive Officer and President, to restructure all of the $18.0 million in notes payable to him, which are now due on December 31, 2019. Accordingly, such debt is classified as a long-term liability at June 30, 2018.

 

As of June 30, 2018, we had approximately $2.4 million in cash and $0.1 million in working deficit.

 

Our Condensed Consolidated Financial Statements as of and for the three months ended June 30, 2018 were prepared on the basis of a going concern, which contemplates, among other things, the realization of assets and satisfaction of liabilities in the ordinary course of business. Accordingly, they do not give effect to adjustments that could be necessary should we be required to liquidate our assets.

 

Our ability to continue as a going concern and raise capital for specific strategic initiatives could also depend on obtaining adequate capital to fund operating losses until it becomes profitable. We can give no assurances that any additional capital that it is able to obtain, if any, will be sufficient to meet our needs, or that any such financing will be obtainable on acceptable terms.

 

Mr. Drexler has verbally both stated his intent and ability to put more capital into the business if necessary. However, Mr. Drexler is under no obligation to us to do so, and we can give no assurances that Mr. Drexler will be willing or able to do so at a future date and/or that he will not demand payment of his refinanced convertible note on December 31, 2019.

 

We believe that our capital resources as of June 30, 2018, available borrowing capacity and current operating plans will be sufficient to fund our planned operations for at least twelve months from the date of filing this report.

 

Results of Operations

 

Comparison of the Three Months Ended June 30, 2018 to the Three Months Ended June 30, 2017

 

	For the Three Months Ended June 30,
	2018	2017	$ Change	% Change
	($ in thousands)
Revenue, net	$27,104	$26,192	$912	3.5%
Cost of revenue	18,952	18,576	376	2.0
Gross profit	8,152	7,616	536	7.0
Operating expenses:
Advertising and promotion	4,991	2,240	2,751	122.8
Salaries and benefits	2,295	2,620	(325)	(12.4)
Selling, general and administrative	2,654	2,829	(175)	(6.2)
Research and development	208	152	56	36.8
Professional fees	626	727	(101)	(13.9)
Setlement of obligation	(2,747)	1,453	(4,200)	(289.1)
Total operating expenses	8,027	10,021	(1,994)	(21.0)
Income/(loss) from operations	125	(2,405)	2,530	(105.2)
Gain on settlement of accounts payable		22	(22)	(100.0)
Interest and other expense, net	(1,165)	(690)	(475)	(68.8)
Loss before income taxes	(1,040)	(3,073)	2,033	(66.2)
Income taxes	34	76	(42)	(55.3)
Net loss	$(1,074)	$(3,149)	$2,075	(65.9)%

 

Comparison of the Six Months Ended June 30, 2018 to the Six Months Ended June 30, 2017

 

	For the Six Months Ended June 30,
	2018	2017	$ Change	% Change
	($ in thousands)
Revenue, net	$53,651	$52,201	$1,450	2.8%
Cost of revenue	37,280	38,115	(835)	(2.2)
Gross profit	16,371	14,086	2,285	16.2
Operating expenses:
Advertising and promotion	8,652	4,128	4,524	109.6
Salaries and benefits	4,449	5,889	(1,440)	(24.5)
Selling, general and administrative	5,200	5,715	(515)	(9.0)
Research and development	420	289	131	45.3
Professional fees	1,198	1,609	(411)	(25.5)
Impairment of assets	(2,747)	1,453	(4,200)	(289.1)
Total operating expenses	17,172	19,083	(1,911)	(10.0)
Loss from operations	(801)	(4,997)	4,196	(84.0)
Gain on settlement of accounts payable	—	471	(471)	(100.0)
Interest and other expense, net	(2,473)	(1,668)	(805)	48.3
Loss before income taxes	(3,274)	(6,194)	2,920	(47.1)
Income taxes	103	104	(1)	(1.0)
Net loss	$(3,377)	$(6,298)	$2,921	(46.4)%