UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-K

 

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

 

For the fiscal year ended December 31, 2015

or

 

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

 

For the transition period from                      to                     .

 

Commission file number 001-31573

 

Medifast, Inc.

(Exact name of registrant as specified in its charter) 

     
Delaware   13-3714405
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)

 

3600 Crondall Lane, Owings Mills, MD 21117

(Address of principal executive offices) (Zip code)

 

Registrant’s telephone number, including area code:

(410) 581-8042

 

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

     
Title of each class   Name of each exchange on which registered
Common Stock, par value $.001   New York Stock Exchange
     

Securities registered pursuant to Section 12(g) of the Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

Yes   ¨      No   x  

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.

Yes   ¨     No   x

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

Yes   x     No   ¨

 

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 if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   ¨

 

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 the 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   x

Non-accelerated filer   ¨   (Do not check if a smaller reporting company)            Smaller reporting company   ¨

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).

Yes   ¨     No   x

 

As of June 30, 2015, the last business day of the Registrant’s most recently completed second fiscal quarter, the aggregate market value of the Registrant’s common stock (based on the closing sale price of $32.32, as reported by the New York Stock Exchange on such date) held by non-affiliates was approximately $345 million.

 

The number of outstanding shares of the Registrant’s common stock as of March 1, 2016 was 11,834,724.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

Portions of the Registrant’s definitive proxy statement to be filed with the Securities and Exchange Commission for its 2016 Annual Meeting of Stockholder’s are incorporated by reference into Part III of this Annual Report on Form 10-K.

 

 

 

 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

This 2015 Annual Report on Form 10-K for the fiscal year ended December 31, 2015 (“Report”) contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  Forward-looking statements often include words such as “may,” “will,” “should,” “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” “seek,” “would,” “could,” and similar words or are made in connection with discussions of future operating or financial performance.

 

Forward-looking statements reflect management’s expectations, beliefs, plans, objectives, goals strategies as of the date of this Report and are not guarantees of future performance or results. Although we believe that these forward-looking statements and the underlying assumptions are reasonable, we cannot assure you that they will be correct. By their nature, forward-looking statements are subject to risks, uncertainties and assumptions that are difficult to predict or quantify. Our actual results and financial condition may differ materially from what is anticipated in the forward-looking statements. Some of those factors (in addition to others described elsewhere in this Report and in subsequent securities filings) include:

 

· our ability to maintain and grow our network of Health Coaches;
· health related claims by our customers;
· the effectiveness of our marketing and advertising programs;
· adverse publicity associated with our products or sales channels;
· the departure of one or more key personnel;
· our ability to continue to develop innovative new services and products;
· the failure of our services or products to continue to appeal to the market;
· our ability to protect our brand and other intellectual property rights;
· product liability claims;
· disruptions in our supply chain, the impact of existing and future laws and regulations on our business, risks associated with unauthorized penetration of our information security;
· overall economic and market conditions and the resultant impact on consumer spending patterns; and
· other risks and uncertainties described elsewhere in this Report, including those described under Item 1A-“Risk Factors” of this Report, and in subsequent filings with the Securities and Exchange Commission (the “SEC”).

 

Readers are cautioned not to place undue reliance on forward-looking statements, which speak only as of the date of this Report. We undertake no obligation to update any information contained in this Report or to publicly release the results of any revisions to forward-looking statements to reflect events or circumstances of which we may become aware of after the date of this Report.

 

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Table of Contents

 

    Page
PART I
     
Item 1 Business 4
Item 1A Risk Factors 9
Item 1B Unresolved Staff Comments 14
Item 2 Properties 14
Item 3 Legal Proceedings 14
Item 4 Mine Safety Disclosure 15
PART II
     
Item 5 Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 16
Item 6 Selected Financial Data 18
Item 7 Management’s Discussion and Analysis of Financial Condition and Results of Operations 18
Item 7A Quantitative and Qualitative Disclosures about Market Risk 27
Item 8 Financial Statements and Supplementary Data 27
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 27
Item 9A Controls and Procedures 27
Item 9B Other Information 30
PART III
     
Item 10 Directors, Executive Officers and Corporate Governance 31
Item 11 Executive Compensation 31
Item 12 Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 31
Item 13 Certain Relationships and Related Transactions, and Director Independence 31
Item 14 Principal Accounting Fees and Services 31
PART IV
     
Item 15 Exhibits and Financial Statement Schedules 32

 

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PART I

 

ITEM 1. BUSINESS

 

SUMMARY

 

Medifast, Inc. (together with its consolidated subsidiaries, “we,” “us,” “our,” the “Company” or “Medifast”) is engaged in the production, distribution, and sale of weight loss, weight management, and healthy living products and other consumable health and diet products. The Company primarily operates through its wholly owned subsidiaries, Jason Pharmaceuticals, Inc., Take Shape For Life, LLC, Jason Enterprises, Inc., Medifast Franchise Systems (“MFSI”), Inc., Jason Properties, LLC, Medifast Nutrition, Inc. and Seven Crondall, LLC. Medifast product lines include weight loss, weight management, and healthy living meal replacements, snacks, hydration products and vitamins. The Company manufactures a significant portion of its products at its manufacturing facility located in Owings Mills, Maryland.

 

MARKETS

 

Over the past 30 years, obesity in the United States has risen dramatically. In 2013, the American Medical Association officially declared obesity a disease and The American Heart Association, the American College of Cardiology, and The Obesity Society recommended that obesity be managed as a chronic disease. Throughout the world, the World Health Organization estimates that approximately 1.9 billion people are overweight. In the United States, over two-thirds of the adult population fall within the overweight or obese categories. According to the Centers for Disease Control and Prevention (“CDC”), over 78 million U.S. adults are obese.

 

Obesity is defined as a Body Mass Index (“BMI”) of 30 kg/m 2 or greater, whereas overweight is defined as a BMI ranging between 25 and 29.9 kg/m 2 . All states in the United States had a prevalence of obesity of at least 20% in 2014. Furthermore, the CDC reported that forty-five states had adult obesity rates of 25% or higher, and twenty-two of these states had obesity rates at 30% or more. Being overweight and/or obese is linked to a multitude of serious comorbidities including heart disease, stroke, Type 2 diabetes, certain types of cancers, arthritis, sleep apnea and depression. A 2015 report by Trust for America’s Health and the Robert Wood Johnson Foundation estimated 80% of people with diabetes are overweight or obese.

 

The primary factors contributing to obesity, which are well known are: unhealthy food choices and lack of physical activity. Obesity is not limited to adults; the CDC has reported children and adolescents are also affected. According to the CDC, the prevalence of obesity in children age 6-11 years has doubled and obesity rates have quadrupled in adolescents age 12-19 years in the past 30 years. Approximately 18% of children and 21% of adolescents are obese and are at an increased risk of developing health problems such as high blood pressure, high cholesterol and prediabetes.

 

Studies completed by the CDC reported Americans incurred $147 billion in medical costs associated with obesity in 2008 and that the average annual medical costs for those who are obese are over $1,400 higher than those of people in normal weight ranges. The U.S. weight loss market itself is estimated to be a $65 billion per year industry, including consumer spending on diet foods, drinks and low-calorie sweeteners; health clubs and workout videos; medically supervised and commercial weight loss programs; children’s weight loss camps; diet books; appetite suppressants and more. Portion-controlled, meal-replacement weight management programs are continuing to gain popularity, as consumers search for a safe and effective solution that provides balanced nutrition, effective weight loss, and valuable behavior-modification education.

 

OUR PRODUCTS, SERVICES, AND DISTRIBUTION CHANNELS

 

THE MEDIFAST® BRAND

 

Medifast enriches lives by providing weight loss, weight management, and healthy living products and programs through multiple channels of distribution, specifically: (1) our direct to consumer channel through our website and in-house call centers, (2) Take Shape For Life, (3) Franchise Medifast Weight Control Centers, and (4) a national network of physicians . Medifast products and programs have been recommended by over 20,000 doctors since 1980.

 

PRODUCTS

 

Our products were originally developed by a physician, Medifast has been on the cutting edge in the development of nutritional and weight-management products since the Company was founded. The Company offers a variety of weight loss, weight management, and healthy living products under the Medifast ® , Thrive by Medifast, Optimal Health by Take Shape For Life®, and Essential 1 ® brands. On January 20, 2016, the Company announced the launch of a sports nutrition product line, Dual Fuel TM , which will be available for select private label customers. The Medifast meal replacement line includes more than 70 options, including, but not limited to bars, bites, pretzels, puffs, cereal crunch, drinks, eggs, hearty choices, oatmeal, pancakes, pudding, soft serve, shakes, smoothies, soft bakes, and soups. The Thrive by Medifast and Optimal Health by Take Shape For Life® lines include a variety of specially formulated bars, shakes, and smoothies for those who are maintaining their weight for long-term healthy living.

 

Medifast nutritional products are formulated with high-quality, low-calorie, and low-fat ingredients. Medifast meals are individually portioned, calorie- and carbohydrate-controlled meal replacements that share a similar nutritional “footprint” and provide a balance of protein and good carbohydrates, including fiber. Medifast meal replacements are also fortified to contain 24 vitamins and minerals, as well as other nutrients essential for good health.

 

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Medifast brand awareness has expanded through the Company’s marketing campaigns, improved product quality, and an emphasis on quality customer service, technical support, and publications developed by the Company’s marketing staff. Medifast products have been proven to be effective for weight loss and weight management in clinical studies conducted by researchers from leading universities. The Company has continued to develop its sales and marketing operations with qualified management and innovative programs. The Company’s facility in Owings Mills, Maryland manufactures all powder-based products and the Company subcontracts the production of all other products.

 

Medifast identifies opportunities to expand its product line by regularly surveying its customer base and studying industry and consumer trends. This allows Medifast to introduce new, high quality products that meet consumer demand.

 

DISTRIBUTION CHANNELS

 

Medifast Direct – In the direct-to-consumer channel (“Medifast Direct”), customers order Medifast product directly through the Company’s website, www.medifastnow.com or our in-house call center. This business is driven by a multi-media customer acquisition and retention strategy that includes television, digital advertising, direct mail, email, public relations, word of mouth referrals, social media initiatives, and other means as deemed appropriate. The Medifast Direct division focuses on targeted marketing initiatives to acquire and retain customers and provides support through its social communities, its in-house call center, and nutrition support team of registered dietitians to better serve its customers.

 

Take Shape For Life® – Take Shape For Life is the personal coaching division of Medifast. This coaching network consists of independent contractor health coaches (“Health Coaches”), who are trained to provide coaching and support to clients utilizing the Take Shape For Life® platform. The role of the Health Coach is to provide support and personal encouragement to help clients effectively reach and sustain a healthy weight, and adopt habits for a lifetime of health. Within our Trilogy of Optimal Health, the Company offers individuals an opportunity to create sustainable health in all areas of their lives – building a healthy body, developing a healthy mind, and generating healthy finances. Health Coaches and their clients follow the principles of the Discover Your Optimal Health book, Habits of Health book, and Habits of Health companion workbook written by the NY Times Best-Selling author and Take Shape For Life® co-founder to create an overall health optimization program. In addition to the encouragement and support of a Health Coach, clients of Take Shape For Life® are offered a bio-network of support including product and program information on our website, weekly support calls, and access to our registered dietitians.

 

Our Health Coaches provide coaching and support to their clients throughout the weight-loss and weight-maintenance process. Most new Health Coaches are introduced to the opportunity by an existing Health Coach. The vast majority of new Health Coaches started as weight-loss clients of a Health Coach, had success on the Take Shape For Life® program, and became a Health Coach to help others through the weight-loss process.

 

Take Shape For Life® is a member of the Direct Selling Association (the “DSA”), a national trade association representing over 200 direct selling companies doing business in the United States. To become a member of the DSA, Take Shape For Life®, like other active DSA member companies, underwent a comprehensive and rigorous one-year company review by DSA legal staff that included a detailed analysis of its company business-plan materials. This review is designed to ensure that a company’s business practices do not contravene DSA’s Code of Ethics. In addition to its DSA membership, Take Shape For Life is also a voluntary DSA Code of Ethics participant, which sets higher standards for ensuring compliance. Compliance with the requirements of the Code of Ethics is paramount to becoming and remaining a member in good standing of the DSA. Accordingly, we believe membership in DSA by Take Shape For Life® demonstrates its commitment to the highest standards of ethics and a pledge not to engage in any deceptive, unlawful, or unethical business practices. Among those Code of Ethics proscriptions are pyramid schemes and endless chain schemes as defined by federal, state, or local laws. Moreover, Take Shape For Life®, like other DSA member companies in good standing, has pledged to provide consumers with accurate and truthful information regarding the price, grade, quality, and performance of the products Take Shape For Life® markets. In 2015, Take Shape For Life®, and its parent company Medifast® was ranked in the Direct Selling Association’s North American 50 & Global 100 lists. 

 

Franchise Medifast Weight Control Centers – Franchise Medifast Weight Control Centers (“MWCC”) offer structured programs and a team of professionals to help customers achieve weight-loss and weight-management success at center locations. In 2008, MFSI, a wholly-owned subsidiary of Medifast, began offering the center model as a franchise opportunity. MFSI currently offers the Medifast Weight Control Center franchise opportunity in most states under a registered (where required) franchise disclosure document (“FDD”). The MFSI Franchise Agreement requires franchisees to develop a minimum of three Medifast Weight Control Centers within a defined geographic area in the time frame set forth in the Development Agreement between MFSI and the franchisee. MFSI currently has franchised centers located in Arizona, California, Louisiana, Minnesota, Maryland, Pennsylvania, Texas, and Wisconsin. As of December 31, 2015, 61 franchise locations were in operation.

 

MFSI currently offers the Medifast Weight Control Center franchise opportunity in most states under a registered (where required) franchise disclosure document (“FDD”). The MFSI Franchise Agreement requires franchisees to develop a minimum of three Medifast Weight Control Centers within a defined geographic area in the time frame set forth in the Franchise and Development Agreement between MFSI and the franchisee.

 

MFSI’s franchise strategy depends on our franchisees’ active involvement in, and management of, Medifast Weight Control Center operations. Candidates are reviewed for appropriate operational experience and financial stability, including specific net worth and liquidity requirements. Upon execution of the Franchise and Development Agreements, franchisees are required to promptly select sites for their Centers, each of which are subject to MFSI’s approval.

 

A franchisee’s initial fee includes the franchise fee for their first Center to be developed and a non-refundable deposit for the second and third Centers to be developed, and covers the cost of MFSI resources provided for, among other things, the training of franchisees and their staff, and approval of the proposed territory for development. If a franchisee desires to open more than three Centers in the designated territory, there is an additional fee charged for each additional Center to be developed.

 

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Prior to the opening of each Medifast Weight Control Center franchise established under the Franchise and Development Agreements, MFSI will do the following:

 

i. designate the Center’s protected territory.

 

ii. review for approval the sites selected by the franchisee for the Center.

 

iii. review for approval the lease governing the location where the Center is to be located.

 

iv. provide the franchisee with standard plans and specifications for the build-out of the Center along with a list of equipment and improvements which the franchisee is required to purchase and install.

 

v. provide an initial training program.

 

vi. provide the franchisee on-site assistance and guidance for approximately three to five days on or about the opening of the Center.

 

vii. provide the franchisee with online access to a password-protected, electronic version of the Medifast Weight Control Centers® Franchise Operations Manuals.

 

MFSI may, in certain limited circumstances, cause its affiliate to provide products at a discounted price. Medifast may, in certain circumstances guarantee a franchisee’s notes, leases or other obligations. MFSI does not offer direct or indirect financing.

 

While MFSI does not currently have a purchase option included in its Franchise and Development Agreements, it does have the right of first refusal to acquire a Center if the franchisee wishes to sell a Center.

 

Medifast Wholesale –Medifast medical provider practices carry an inventory of wholesale products and resell them to patients while providing appropriate medical monitoring, testing, and support to ensure healthy weight loss and weight management.

 

The Company offers extensive resources to assist the medical providers, their staff and their patients in achieving success with their Medifast program. These medical providers have access to our nutrition support team, marketing assets and training modules to help grow their program and enable patients to achieve their weight loss and associated health goals. Medifast’s nutrition support team includes registered dietitians and a behavioral specialist who provide program support and advice via phone and email.

 

In 2014, the Company began piloting an online offering that features a resource center to provide Medifast medical providers access to the most current product and program material to support their patients and their business. In addition to opening up the opportunity for current Medifast medical providers to incorporate an e-commerce solution into their Medifast offering, they now have access to online training, news and tips from Medifast, and customizable marketing material to help them reach more patients via our wholesale healthcare channel.

 

In 2012, the Company entered into a 3-year strategic partnership with Medix, a leader in pharmaceutical obesity products in Mexico. The agreement granted Medix an exclusive license for the distribution of Medifast products and programs through physicians and weight control centers in Mexico under the Medifast brand. Inventory is shipped to Medix within the United States and the resulting revenues are classified as domestic sales for the Company.

 

In January 2013, the Company and Medix, amended their agreement to provide an exclusive 5-year licensing agreement to increase distribution of Medifast meal replacement products and programs beyond Mexico and into Argentina, Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, Venezuela, and Uruguay. In 2015, Medix operated one Medifast Weight Control Center in Mexico and launched their brand revitalization strategy with the opening of a 180 0 Center that features Medifast products and programs. Along with seven Slim Centers, Medix continued operations in nine total locations in Mexico.

 

The Company recently started to expand its international presence into Canada.

 

SEASONALITY

 

Sales of the Company's weight management products and programs have historically been seasonal. Traditionally, predisposition of consumers not to initiate a weight loss or management program during the holiday season impacts the fourth quarter with fewer sales of weight management products and services. January and February generally show increases in sales, as these months are considered the commencement of the “diet season.”

 

SCIENTIFIC ADVISORY BOARD

 

Medifast has a Scientific Advisory Board that consists of a multi-disciplinary, international panel that serves as the foundation for scientifically-valid, consumer-centric, high quality innovations for lasting health. Its mission is to help guide Medifast in making informed decisions regarding medical, nutritional, and scientific matters by providing expertise and information on research and emerging trends.

 

The work of this cross-disciplinary group builds on Medifast’s heritage of medically sound approaches to weight loss, and the incorporation of leading-edge clinical research into the Company’s products and programs. The Scientific Advisory Board is chaired by Lawrence Cheskin, M.D., F.A.C.P., associate professor of Health, Behavior, and Society at Johns Hopkins Bloomberg School of Public Health and director at Johns Hopkins Weight Management Center.

 

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COMPETITION

 

The weight-loss industry is very competitive and encompasses various weight loss products and programs. These include a wide variety of commercial weight-loss programs, pharmaceutical products, books, self-help diets, dietary supplements, appetite suppressants, and meal replacements, as well as, digital tools and wearable trackers. The weight loss market is served by a diverse array of competitors. Potential customers seeking to manage their weight can turn to other traditional center-based competitors, online diet oriented sites, self-directed dieting and self-administered products such as prescription drugs, over-the-counter drugs and supplements, as well as medically supervised programs.

 

Medifast’s identified peers and competitors in the general health and wellness diet industry include NutriSystem Inc., Herbalife Ltd., USANA Health Sciences, and Weight Watchers International, Inc. The Company believes that it competes effectively in the weight-loss industry and differentiates itself from the competition.

 

The Company believes its scientific and clinical heritage and commitment to evaluating its products and programs through clinical research are primary differentiators that allow it to compete in this market. Another primary differentiator is the Company’s unique multi-channel distribution strategy, which provides varying support modalities, and broadens the availability of the Medifast brand by targeting a customer’s individual needs. Originally developed by a physician, Medifast has been on the cutting edge in the development of nutritional and weight-management products since the Company was founded. Medifast meals are individually portioned, calorie- and carbohydrate-controlled meal replacements that share a similar nutritional “footprint” and provide a balance of protein and good carbohydrates, including fiber.

 

Medifast Medical Providers offer Medifast products and programs to patients in their practice and utilize wholesale sales. Medifast Direct serves customers through the Medifast website and call center with various online support tools, along with access to registered dietitians. The Take Shape For Life® division offers the personal support of a Health Coach that is often a person who has achieved success with Take Shape For Life® and has turned their success into a business opportunity. Medifast Weight Control Centers offer a supervised and structured model for customers who prefer more accountability and personalized counseling as part of the ongoing program. Medifast weight management programs utilize meal replacements as part of a structured meal plan that clinical research has shown to be effective for weight loss.

 

MARKETING

 

In 2015, Medifast continued to build and leverage its core Medifast brand through multiple marketing strategies for each distinct distribution channel: Take Shape For Life®, Medifast Direct, Medifast Weight Control Centers, and Medifast Wholesale. Customer acquisition and retention strategies vary by distribution channel and may include digital marketing, television advertising, public relations, social media, email marketing, events, and other means. These mediums were used to target new customers by stressing Medifast's and Take Shape For Life’s® simple and effective approach to weight loss and management and long term health. Many of these programs were also utilized to reactivate, encourage and support existing customers and Health Coaches. Medifast and Take Shape For Life® continues to enhance all company materials and websites.

 

MANUFACTURING

 

Jason Pharmaceuticals, Inc., the Company’s wholly-owned subsidiary, manufactures and produces all Medifast powder-based products, which is approximately 42% of Medifast’s product revenues, in the manufacturing facility in Owings Mills, Maryland. The Company purchased the plant in July 2002 and has gradually increased production capacity and improved overall efficiencies with additional investments in blending and packaging equipment. The remaining 58% of Medifast products are manufactured by third party vendors in accordance with Medifast proprietary formulas and manufacturing standards. Our Owings Mills manufacturing facility is regulated and inspected by the United States Food and Drug Administration (“FDA”), the United States Department of Agriculture (“USDA”) and the Maryland State Department of Health and Mental Hygiene. It is certified as a Safe Quality Food Program (SQF) Level 2 facility compliant with the Global Food Safety Initiative.

 

GOVERNMENTAL REGULATION HISTORY

 

The formulation, processing, packaging, labeling, marketing, advertising and selling of the Company's products is subject to regulation by federal, state and local agencies. Products must comply with the Federal Food Drug and Cosmetic Act, the Food Safety Modernization Act, the Federal Trade Commission Act, State Consumer Protection laws and several other federal, state and local statutes and regulations applicable in localities in which the company products are made or are sold.

 

The FDA and USDA and State and local Health departments are the major agencies whose regulatory mission is to assure that products are made using approved ingredients, manufacturing procedures and testing to ensure that safe quality products are delivered to consumers. The Federal Trade Commission (“FTC”) has principal regulatory control over the Company’s advertising and trade practices, its enforcement powers are aimed at protecting the consumer from being deceived by unfair marketing and trading practices.

 

The FTC has principal regulatory control over the Company’s advertising. Historically, the FTC has filed complaints against a number of commercial weight management providers alleging violations of federal law in connection with the use of advertisements that featured testimonials and claims for program success. In 2012, Jason Pharmaceuticals, Inc., a wholly-owned subsidiary of the Company, entered into a consent decree with the FTC regarding certain statements included in the advertising for the Company’s weight-loss programs. The consent decree requires us to comply with certain procedures and disclosures in connection with our advertisements of products and services.

 

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PRODUCT LIABILITY AND INSURANCE

 

The Company, like other producers and distributors of ingested products, faces an inherent risk of exposure to product liability claims in the event that, among other things, the use of its products results in injury. The Company maintains insurance against product liability claims with respect to the products it manufactures. With respect to the retail and direct marketing distribution of products produced by others, the Company's principal form of insurance consists of arrangements with each of its suppliers of those products to name the Company as beneficiary on each of such vendor's product liability insurance policies. The Company does not buy products from suppliers who do not maintain such coverage.

 

EMPLOYEES

 

As of December 31, 2015, the Company’s subsidiaries employed 425 employees, of whom 182 were engaged in manufacturing, logistics, and supply chain support, and 243 in marketing, administrative, call center and corporate support functions. None of the employees are subject to a collective bargaining agreement with the Company. All employees are employed by Jason Pharmaceuticals, Inc.

 

INFORMATION SYSTEMS INFRASTRUCTURE

 

Our websites are based on commercially developed software and are hosted at a co-location data center located in Baltimore, Maryland. This data center is SSAE16 and PCI-DSS compliant. This facility provides redundant network connections, uninterruptible power supplies, robust physical security, fire prevention controls, and diesel generated power back up for the equipment on which our websites rely. Our servers and our network are monitored 24 hours a day, seven days a week.

 

We use a variety of security techniques to protect our confidential customer data, including regularly scheduled penetration security tests on our websites. We also use an industry leading network monitoring service for our Intrusion Detection Services solution along with Intrusion Prevention System devices on our network’s perimeter. When our customers place an order or access their account information, we use secure channels to encrypt and transmit information. Our security certificates encrypt all information entered before it is sent to our servers. We have a secondary firewall layer of security between our customer facing websites and the databases which house their information and we have deployed mitigation devices to protect against Distributed Denial of Service attacks. Customer data is protected against unauthorized access. We have a redundant network across our organization which provides for inter-connectivity and redundancy for our corporate locations.

 

As our operations grow in both size and scope, we will continuously improve and upgrade our information systems and infrastructure while maintaining their reliability and integrity.

 

INTELLECTUAL PROPERTY

 

Products manufactured by and programs marketed by the Company are sold primarily under its own trademarks and trade names. Ours policy is to protect our products and programs through trademark registrations both in the U.S. and in significant international markets. The Company carefully monitors trademark use and promotes enforcement of its trademarks in a manner that is designed to balance the cost of such protection against obtaining the greatest value for the Company.

 

AVAILABLE INFORMATION

 

Our principal office is located at 3600 Crondall Lane, Owings Mills, Maryland 21117. Our telephone number at this office is (410) 581-8042. Our corporate website is located at http://www.medifastnow.com. All periodic and current reports, registration statements, code of conduct and other material that we are required to file with the SEC, including our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are available free of charge through our investor relations page at http://www.medifastnow.com. Such documents are available as soon as reasonably practicable after electronic filing of the material with the SEC. Our Internet website and the information contained therein or connected thereto are not intended to be incorporated into this Annual Report.

 

The public may also read and copy any materials field by the Company with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site, www.sec.gov, which contains reports, proxy and information statements, and other information regarding issuers that file such information electronically with the SEC.

 

CERTIFICATIONS

 

The Company’s Chief Executive Officer and Chief Financial Officer have filed their certifications as required by the SEC regarding the quality of the Company’s public disclosure for each of the periods ended during the Company’s fiscal year ended December 31, 2015 and the effectiveness of internal control over financial reporting as of December 31, 2015. Further, the Company’s Chief Executive Officer has certified to the New York Stock Exchange (“NYSE”) that he is not aware of any violation by the Company of the NYSE corporate governance listing standards, as required by Section 303A.12(a) of the NYSE listing standards.

 

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QUARTERLY RESULTS (Unaudited)

 

    First Quarter     Second Quarter     Third Quarter     Fourth Quarter  
                         
2015                                
Revenue   $ 73,364,000     $ 72,161,000     $ 65,936,000     $ 61,312,000  
Gross Profit     53,770,000       53,167,000       49,160,000       45,218,000  
Income from continuing operations before income taxes     6,792,000       8,828,000       8,109,000       5,942,000  
Income from continuing operations     4,416,000       5,847,000       5,402,000       3,902,000  
Net Income     4,444,000       6,248,000       5,506,000       3,860,000  
Earnings per share from continuing operations- diluted     0.36       0.48       0.45       0.33  
Earnings (loss) per common share- diluted     0.36       0.51       0.46       0.33  
                                 
2014                                
Revenue   $ 79,233,000     $ 74,732,000     $ 69,017,000     $ 62,303,000  
Gross Profit     57,924,000       55,574,000       50,734,000       44,975,000  
Income from continuing operations before income taxes     9,930,000       10,094,000       7,508,000       4,161,000  
Income from continuing operations     6,545,000       6,619,000       5,281,000       2,584,000  
Net Income     5,967,000       5,720,000       4,855,000       (3,361,000 )
Earnings per share from continuing operations- diluted     0.49       0.50       0.42       0.21  
Earnings (loss) per common share- diluted     0.45       0.44       0.39       (0.28 )

 

Earnings per common share (sometimes referred to as “EPS”) is computed independently for each of the quarters presented; accordingly, the sum of the quarterly earnings per common share may not equal the total computed for the year.

 

ITEM 1A. RISK FACTORS

 

You should consider carefully the following risks and uncertainties when reading this Report. If any of the events described below actually occurs, the Company's business, financial condition and operating results could be materially adversely affected. You should understand that it is not possible to predict or identify all such risks and uncertainties. Consequently, you should not consider the following to be a complete discussion of all potential risks or uncertainties.

 

Risks Related to Our Business

 

The success of our Take Shape For Life® business is dependent on our ability to maintain and grow our network of Health Coaches.

 

Sales in our Take Shape For Life® channel are generated by our independent contractor Health Coaches. The channel is subject to high turnover and we depend on our network of Health Coaches to continually grow their businesses by attracting, training and motivating new Health Coaches. We consider our number of Health Coaches and revenue per Health Coach to be key indicators of our success in the Take Shape For Life® channel. For the quarter ended December 31, 2015, the Company had 11,900 active Health Coaches and the average revenue per Health Coach was $4,039. If we fail to provide the tools and competitive compensation necessary to promote Health Coaches to grow their businesses, we believe these key indicators will weaken and our revenue will decline.

 

The growth and sustainability of our network of Health Coaches is also subject to risk factors which may be outside of our control. These include:

 

· Negative public perceptions of multi-level marketing;
· General economic conditions;
· Failure to develop innovative products to meet consumer demands
· Adverse opinions of our products, services, or industry; and
· Regulatory actions against our company, competitors in our industry, or other direct selling companies.

 

Our future growth and profitability will depend in large part upon the effectiveness and efficiency of our marketing expenditures and our ability to select effective markets and media in which to advertise.

 

Our business success depends on our ability to attract and retain customers, which significantly depends on our marketing practices. In 2015, 2014 and 2013 our marketing expenditures were $15.3 million, $17.0 million and $22.1 million, respectively. Our future growth and profitability will depend in large part upon the effectiveness and efficiency of our marketing expenditures, including our ability to:

 

· create greater awareness of our brand and our program;
· identify the most effective and efficient levels of spending in each market, media and specific media vehicle;

 

  9  

 

 

· determine the appropriate creative messages and media mix for advertising, marketing and promotional expenditures;
· effectively manage marketing costs (including creative and media) in order to maintain acceptable customer acquisition costs;
· acquire cost-effective television advertising;
· select the most effective markets, media and specific media vehicles in which to advertise; and
· convert consumer inquiries into actual orders.

 

Our planned marketing expenditures may not result in increased revenue or generate sufficient levels of brand name and program awareness. We may not be able to manage our marketing expenditures on a cost-effective basis whereby our customer acquisition costs may exceed the contribution profit generated from each additional customer.

 

Our sales may be adversely impacted by the health and stability of the general economy.

 

Our results of operation are highly dependent on product sales and program fees. A downturn in general economic conditions, such as a recession or prolonged economic slowdown, may reduce the demand for our products and otherwise adversely affect our sales. For example, economic forces, including general economic conditions, demographic trends, consumer confidence in the economy, changes in disposable consumer income and/or reductions in discretionary spending, may cause consumers to defer or decrease purchases of our products and programs which could adversely affect our revenue, gross margins, and/or our overall financial condition and operating results.

 

We rely on third parties to provide us with a majority of the products we sell and we manufacture the remaining portion. The inability to obtain the necessary product from our third-party manufacturers or to produce products could cause our revenue, earnings or reputation to suffer.

 

We rely on third-party manufacturers to supply approximately 58% of the food and other products we sell. If we are unable to obtain sufficient quantity, quality and variety of food and other products in a timely and low-cost manner from our manufacturers, we will be unable to fulfill our customers’ orders in a timely manner, which may cause us to lose revenue and market share or incur higher costs, as well as damage the value of the Medifast brand.

 

Therefore, we are dependent on maintaining good relationships with these manufacturers. The services we require from these parties may be disrupted due to a number of factors associated with their businesses, including the following:

 

· labor disruptions;
· delivery problems;
· financial condition or results of operations;
· internal inefficiencies;
· equipment failure
· severe weather;
· fire;
· nature or man-made disasters;
· shortages of ingredients; and
· USDA or FDA compliance issues.

 

We manufacture approximately 42% of the food and other products we sell. As a result we are dependent upon the uninterrupted and efficient operation of our sole manufacturing facility in Owings Mills, Maryland. The operations at this facility may be disrupted by a number of factors, including the following:

 

· labor disruptions;
· power failures;
· equipment failure;
· internal inefficiencies;
· severe weather;
· fire;
· nature or man-made disasters; and
· USDA or FDA compliance issues.

 

There can be no assurance that the occurrence of these or any other operation problems at our sole facility would not have a material adverse effect on our business, financial condition or results of operations.

 

  10  

 

 

We may be subject to claims that our Health Coaches are unqualified to provide proper weight loss advice.

 

Our Health Coaches are independent contractors and, accordingly, we are not in a position to provide the same level of oversight as we would if Health Coaches were our own employees. As a result, there can be no assurance that our Health Coaches will comply with our policies and procedures despite our internal compliance efforts. Additionally, some of our Health Coaches do not have extensive training or certification in nutrition, diet or health fields and have only undergone the training they receive from us. We may be subject to claims from our customers alleging that our Health Coaches lack the qualifications necessary to provide proper advice regarding weight loss and related topics. We may also be subject to claims that our Health Coaching have provided inappropriate advice or have inappropriately referred or failed to refer customers to health care providers for matters other than weight loss. Such claims could result in lawsuits, damage to our reputation and divert management's attention from our business, which would adversely affect our business.

 

We may be subject to health or advertising related claims from our customers.

 

Our weight loss program does not include medical treatment or medical advice, and we do not engage physicians or nurses to monitor the progress of our customers. Many people who are overweight suffer from other physical conditions, and our target consumers could be considered a high-risk population. A customer who experiences health problems could allege or bring a lawsuit against us on the basis that those problems were caused or worsened by participating in our weight management program. Further, customers who allege that they were deceived by any statements that we made in advertising or labeling could bring a lawsuit against us under consumer protection laws. Currently, we are neither subject to any such allegations nor have we been named in any such litigation. If we were subject to any such claims, while we would defend ourselves against such claims, we may ultimately be unsuccessful in our defense. Also, defending ourselves against such claims, regardless of their merit and ultimate outcome, would likely be lengthy and costly, and adversely affect our brand image, customer loyalty and results of operations.

 

The weight management industry is highly competitive. If any of our competitors or a new entrant into the market with significant resources pursues a weight management program similar to ours, our business could be significantly affected.

 

Competition is intense in the weight management industry and we must remain competitive in the areas of program efficacy, price, taste, customer service and brand recognition. Our competitors include companies selling pharmaceutical products and weight loss programs, digital tools and wearable trackers, as well as a wide variety of diet foods and meal replacement bars and shakes, appetite suppressants and nutritional supplements. Some of our competitors are significantly larger than we are and have substantially greater resources. Our business could be adversely affected if someone with significant resources decided to imitate our weight management program. For example, if a major supplier of pre-packaged foods decided to enter this market and made a substantial investment of resources in advertising and training diet counselors, our business could be significantly affected. Any increased competition from new entrants into our industry or any increased success by existing competition could result in reductions in our sales or prices, or both, which could have an adverse effect on our business and results of operations.

 

New weight loss products or services may put us at a competitive disadvantage and our business may suffer.

 

The weight management industry is subject to changing consumer demands based, in large part, on the efficacy and popular appeal of weight management programs. The popularity of weight management programs is dependent, in part, on their ease of use, cost and channels of distribution as well as consumer trends, and, on an ongoing basis, many existing and potential providers of weight loss solutions, including many pharmaceutical firms with significantly greater financial and operating resources than we have, are developing new products and services. The creation of a weight loss solution, such as a drug therapy, that is perceived to be safe, effective and "easier" than a portion-controlled meal plan would put us at a disadvantage in the marketplace and our results of operations could be negatively affected.

 

If we do not continue to develop innovative new services and products or if our services and products do not continue to appeal to the market, or if we are unable to successfully expand into new channels of distribution or respond to consumer trends, our business may suffer.

 

The increasing focus of consumers on more integrated lifestyle and fitness approaches rather than just food, nutrition and diet could adversely impact the popularity of our programs. Our future success depends on our ability to continue to develop and market new, innovative services and products and to enhance our existing services and products, each on a timely basis to respond to new and evolving consumer demands, achieve market acceptance and keep pace with new nutritional, weight management, technological and other developments. We may not be successful in developing, introducing on a timely basis or marketing any new or enhanced services and products, and we cannot assure you that any new or enhanced services or products will appeal to the market. Our failure to develop new products and services and to enhance our existing products and services, and the failure of our products and services to continue to appeal to the market could have an adverse impact on our ability to attract and retain customers and thus adversely affect our business, financial condition or results of operations.

 

We may be subject to litigation from our competitors.

 

Our competitors may pursue litigation against us based on our advertising or other marketing practices regardless of merit and chances of success, especially if we engage in competitive advertising, which includes advertising that directly or indirectly mentions a competitor or a competitor's weight loss program in comparison to our program. While we would defend ourselves against any such claims, our defense may ultimately be unsuccessful. Also, defending against such claims, regardless of merit and ultimate outcome, may be lengthy and costly, strain our resources and divert management's attention from their core responsibilities, which would have a negative impact on our business.

 

  11  

 

 

Our business is subject to online security risks, including security breaches and identity theft.

 

Unauthorized users who penetrate our information security could misappropriate proprietary or customer information or data or cause interruptions to the product offerings on our website. As a result, it may become necessary to expend significant additional amounts of capital and resources to protect against, or to alleviate, problems caused by unauthorized users. These expenditures, however, may not prove to be a timely remedy against unauthorized users who are able to penetrate our information security. In addition to purposeful security breaches, the inadvertent transmission of computer viruses could adversely affect our computer systems and, in turn, harm our business.

 

A significant number of states require that customers be notified if a security breach results in the disclosure of their personal financial account or other information. Additional states and governmental entities are considering such "notice” laws. In addition, other public disclosure laws may require that material security breaches be reported. If we experience a security breach and .such notice or public disclosure is required in the future, our reputation and our business may be harmed.

 

In the ordinary course of our business, we collect and utilize proprietary and customer information and data. Privacy concerns among prospective and existing customers regarding our use of such information or data collected on our website or through our services and products, such as weight management information, financial data, email addresses and home addresses, could keep them from using our website or purchasing our services or products. We currently face certain legal obligations regarding the manner in which we treat such information and data. Businesses have been criticized by privacy groups and governmental bodies for their use and handling

of such information and data. We rely on third-party software products to secure our credit card transactions. Although we have developed systems and processes that are designed to protect consumer information and prevent fraudulent payment transactions and other security breaches, failure to prevent or mitigate such fraud or breaches or changes in industry standards or regulations may adversely affect our business and operating results or cause us to lose our ability to accept credit cards as a form of payment and result in chargebacks of the fraudulently charged amounts. Furthermore, widespread credit card fraud may lessen our customers’ willingness to purchase our products on our website.

 

Third parties may infringe on our brand, trademarks and other intellectual property rights, which may have an adverse impact on our business.

 

We currently rely on a combination of trademark and other intellectual property laws and confidentiality procedures to establish and protect our proprietary rights, including our brand. Because our business relies heavily on a direct-to-consumer business model, our brand is an important element of our business strategy. If we fail to successfully enforce our intellectual property rights, the value of our brand, services and products could be diminished and our business may suffer. Additionally, failure to protect our intellectual property could result in the entry of a competitor to the market. Our precautions may not prevent misappropriation of our intellectual property. Any legal action that we may bring to protect our brand and other intellectual property could be unsuccessful and expensive and could divert management’s attention from other business concerns. In addition, legal standards relating to the validity, enforceability and scope of protection of intellectual property, especially in Internet-related businesses, are uncertain and evolving. We cannot assure you that these evolving legal standards will sufficiently protect our intellectual property rights in the future.

 

We may in the future be subject to intellectual property rights claims.

 

Third parties may in the future make claims against us alleging infringement of their intellectual property rights. Any intellectual property claims, regardless of merit, could be time-consuming and expensive to litigate or settle and could significantly divert management’s attention from other business concerns. In addition, if we were unable to successfully defend against such claims, we may have to pay damages, stop selling the service or product or stop using the software, technology or content found to be in violation of a third party’s rights, seek a license for the infringing service, product, software, technology or content or develop alternative non-infringing services, products, software, technology or content. If we cannot license on reasonable terms, develop alternatives or stop using the service, product, software, technology or content for any infringing aspects of our business, we may be forced to limit our service and product offerings. Any of these results could reduce our revenue and our ability to compete effectively, increase our costs or harm our business.

 

We may not be able to successfully implement new strategic initiatives, which could adversely impact our business.

 

We are continuously evaluating changing consumer preferences and the competitive environment of our industry and seeking out opportunities to improve our performance through the implementation of selected strategic initiatives. The goal of these efforts is to develop and implement a comprehensive and competitive business strategy which addresses the continuing changes in the weight management industry environment and our position within the industry. For example, as the healthcare industry continues to evolve its response to the obesity epidemic so do the requirements, both regulatory and business, for providers. If we do not successfully meet these requirements, we may not be perceived as an appropriate partner for certain purposes. We may not be able to successfully implement our strategic initiatives and realize the intended business opportunities, growth prospects, including new business channels, and competitive advantages. Our efforts to capitalize on business opportunities may not bring the intended results. Assumptions underlying expected financial results or consumer demand may not be met or economic conditions may deteriorate. We also may be unable to attract and retain highly qualified and skilled personnel to implement our strategic initiatives. If these or other factors limit our ability to successfully execute our strategic initiatives, our business activities, financial condition and results of operations may be adversely affected.

 

  12  

 

 

The sale of our products in markets outside of the United States may subject us to risks.

 

We have entered into certain arrangements for the sale of our products in international markets and we plan to expand our international sales, marketing and distribution activities on our own and through arrangements with partners located in other countries. The sale, marketing and distribution of our products and programs in such locations is subject to a number of uncertainties, including, but not limited to, the following:

 

· Economic and political instability;
· Import or export licensing requirements;
· Trade restrictions;
· Product registration requirements;
· Longer payment cycles;
· Changes in regulatory requirements and tariffs;
· Potentially adverse tax consequences; and
· Potentially weak protection of intellectual property rights.

 

We are dependent on our key executive officers for future success. If we lose the services of any of our key executive officers and we are unable to timely retain a qualified replacement, our business could be harmed.

 

Our future success depends to a significant degree on the skills, experience and efforts of our key executive officers. The loss of the services of any of these individuals could harm our business. We have not obtained life insurance on any key executive officers. If any key executive officers left us or were seriously injured and became unable to work, our business could be harmed.

 

Provisions in our certificate of incorporation may deter or delay an acquisition of us or prevent a change in control, even if an acquisition or a change of control would be beneficial to our stockholders.

 

Provisions of our certificate of incorporation (as amended) may have the effect of deterring unsolicited takeovers or delaying or preventing a third party from acquiring control of us, even if our stockholders might otherwise receive a premium for their shares over then current market prices. In addition, these provisions may limit the ability of stockholders to approve transactions that they may deem to be in their best interests.

 

Our certificate of incorporation (as amended) permits our Board of Directors to issue preferred stock without stockholder approval upon such terms as the Board of Directors may determine. The rights of the holders of our common stock will be junior to, and may be adversely affected by, the rights of the holders of any preferred stock that may be issued in the future. The issuance of preferred stock could have the effect of making it more difficult for a third party to acquire, or discouraging a third party from acquiring, a majority of our outstanding common stock. The issuance of a substantial number of preferred shares could adversely affect the price of our common stock.

 

Risks Related to Our Industry

 

Changes in consumer preferences could negatively impact our operating results.

 

Our program features pre-packaged food selections, which we believe offer convenience and value to our customers. Our continued success depends, to a large degree, upon the continued popularity of our program versus various other weight loss, weight management and fitness regimens, such as low carbohydrate diets, appetite suppressants and diets featured in the published media. Changes in consumer tastes and preferences away from our pre-packaged food and support and counseling services, and any failure to provide innovative responses to these changes, may have a materially adverse impact on our business, financial condition, operating results, cash flows and prospects. Our success is also dependent on our food innovation including maintaining a robust array of food items and improving the quality of existing items. If we do not continually expand our food items or provide customers with items that are desirable in taste and quality, our business could be harmed.

 

The weight loss industry is subject to adverse publicity, which could harm our business.

 

The weight loss industry receives adverse publicity from time to time, and the occurrence of such publicity could harm us, even if the adverse publicity is not directly related to us. Congressional hearings about practices in the weight loss industry have also resulted in adverse publicity and a consequent decline in the revenue of weight loss businesses. Future research reports or publicity that is perceived as unfavorable or that question certain weight loss programs, products or methods could result in a decline in our revenue. Because of our dependence on consumer perceptions, adverse publicity associated with illness or other undesirable effects resulting from the consumption of our products or similar products by competitors, whether or not accurate, could also damage customer confidence in our weight loss program and result in a decline in revenue. Adverse publicity could arise even if the unfavorable effects associated with weight loss products or services resulted from the user’s failure to use such products or services appropriately.

 

Our industry is subject to governmental regulation that could increase in severity and hurt results of operations.

 

Our industry is subject to federal, state and other governmental regulation. Certain federal and state agencies, such as the Federal Trade Commission (the "FTC"), regulate and enforce laws relating to advertising, disclosures to consumers, privacy, consumer pricing and billing arrangements and other consumer protection matters. A determination by a federal or state agency, or a court, that any of our practices do not meet existing or new laws or regulations could result in liability, adverse publicity, and restrictions of our business operations. Some advertising practices in the weight loss industry have led to investigations from time to time by the FTC and other governmental agencies. Many companies in the weight loss industry, including our predecessor businesses, have entered into consent decrees with the FTC relating to weight loss claims and other advertising practices. In October 2009, the FTC published its revised Guides concerning the Use of Endorsements and Testimonials in Advertising which now requires us to use a statement as to what the typical weight loss customers can expect to achieve on our program when using a customer's weight loss testimonial in advertising. Federal and state regulation of advertising practices generally, and in the weight loss industry in particular, may increase in scope or severity in the future, which could have a material adverse impact on our business.

 

  13  

 

 

Other aspects of our industry are also subject to government regulation. For example, the labeling and distribution of food products, including dietary supplements, are subject to strict USDA and FDA requirements and food manufacturers are subject to rigorous inspection and other requirements of the USDA and FDA, and companies operating in foreign markets must comply with those countries' requirements for proper labeling, controls on hygiene, food preparation and other matters. If federal, state, local or foreign regulation of our industry increases for any reason, then we may be required to incur significant expenses, as well as modify our operations to comply with new regulatory requirements, which could harm our operating results. Additionally, remedies available in any potential administrative or regulatory actions may include product recalls and requiring us to refund amounts paid by all affected customers or pays other damages, which could be substantial.

 

Laws and regulations directly applicable to communications, operations or commerce over the Internet such as those governing intellectual property, privacy, libel and taxation, are more prevalent and remain unsettled. If we are required to comply with new laws or regulations or new interpretations of existing laws or regulations, or if we are unable to comply with these laws, regulations or interpretations, our business could be adversely affected.

 

Future laws or regulations, including laws or regulations affecting our marketing and advertising practices, relations with consumers, employees, service providers, or our services and products, may have an adverse impact on us.

 

The manufacture and sale of ingested products involves product liability and other risks.

 

Like other manufacturers and distributors of products that are ingested, we face an inherent risk of exposure to product liability claims if the use of our products results in illness or injury. The foods and products that we manufacture and sell in the U.S. are subject to laws and regulations, including those administered by the USDA and FDA that establish manufacturing practices and quality standards for food products. Product liability claims could have a material adverse effect on our business as existing insurance coverage may not be adequate. Distributors of weight loss food products, including dietary supplements, have been named as defendants in product liability lawsuits from time to time. The successful assertion or settlement of an uninsured claim, a significant number of insured claims or a claim exceeding the limits of our insurance coverage would harm us by adding costs to the business and by diverting the attention of senior management from the operation of the business. We may also be subject to claims that our products contain contaminants, are improperly labeled; include inadequate instructions as to use or inadequate warnings covering interactions with other substances. Additionally, the manufacture and sale of these products involves the risk of injury to consumers due to tampering by unauthorized third parties or product contamination. To date, we have not been a party to any product liability litigation and we are not aware of any instance in which any of our products have been defective in any way that could give rise to product liability claims. Product liability litigation, even if not meritorious, is very expensive and could also entail adverse publicity for us and reduce our revenue. Any negative publicity associated with these actions would adversely affect our brand and may result in decreased product sales and, as a result, lower revenue and profits.

 

ITEM 1B. UNRESOLVED STAFF COMMENTS

 

None

 

ITEM 2. DESCRIPTION OF PROPERTY

 

In Owings Mills, Maryland, the Company owns a 49,000 square-foot manufacturing facility and leases two buildings which serve as corporate headquarters which are set to expire on August 31, 2016 and October 31, 2017. The Company owns a 119,000 square-foot distribution facility in Ridgley, Maryland and leases a second distribution center in Dallas, Texas which includes a call center. This lease is set to expire on March 31, 2018. Both distribution facilities give the Company adequate product distribution capacity for the foreseeable future. The Company owned a 3,000 square-foot conference and training facility in Ocean City, Maryland that was sold in February 2016. The Company leases a raw materials warehouse in Arbutus, Maryland that expires in May 2018. The Company also has 41 leases for what were its corporate owned Medifast Weight Control Centers. The 41 leases include 3 agreements for Centers that were closed in December 2013 and 7 agreements for Centers that were closed in December 2014 that the Company is in the process of negotiating lease terminations or sublease arrangements, if possible. The remaining 31 agreements are for Centers that were sold to franchise partners during 2014 and the Company entered into sublease agreements with the franchisees. All corporate leases range in terms from one to ten years.

 

ITEM 3. LEGAL PROCEEDINGS

 

Medifast entered into a number of Franchise and Development Agreements with Team Wellness, Inc. and Team Wellness Louisiana, LLC for the operation of Medifast Centers in the States of Alabama, Tennessee, and Louisiana. The primary owner and representative of the Team Wellness companies personally guaranteed the companies’ obligations. 

 

Team Wellness, Inc. failed to make payments required under the terms of a Loan Agreement that Team Wellness, Inc. had entered into with Bank of America and for which Medifast provided a limited guarantee. As a result, Medifast served Team Wellness, Inc. with a Notice of Default and Opportunity to Cure. After Team Wellness, Inc. failed to cure and pay the outstanding amounts, and was otherwise in default under the Franchise and Development Agreements, Medifast served Team Wellness, Inc. with a Notice of Termination. In addition, Medifast terminated Team Wellness Louisiana LLC’s franchises, alleging that Team Wellness Louisiana LLC and its guarantor never disclosed to Medifast that RMS Management LLC was an owner of Team Wellness Louisiana LLC but rather represented to Medifast that the guarantor was the sole owner.  

 

  14  

 

 

When the companies and the primary guarantor failed to pay the monies owed or comply with their post-termination obligations, Medifast filed a lawsuit on November 21, 2014 against the primary guarantor and the companies in the United States District Court for the District of Maryland (Medifast Franchise Systems, Inc. v. Team Wellness, Inc., et al., No. 14-03668 (D. Md.) for breach of contract (nonpayment) and fraud (relating to Medifast’s allegation that Team Wellness LLC and its guarantor failed to disclose that RMS Management LLC was an owner of Team Wellness Louisiana LLC). The complaint seeks damages, enforcement of the termination of the Franchise and Development Agreements, and an injunction ordering the defendants to comply with their post-termination obligations under the Franchise and Development Agreements. Medifast moved for a default judgment against the companies after they failed to answer the complaint. The court granted the motion on June 24, 2015. The Court’s Order requires the companies to pay $2,100,927.53 million to Medifast, which includes the following: outstanding royalties and receivables on food purchases in the amount of $141,239.89, reimbursement for loan payments in the amount of $1,892,834.44, and interest and fees on those loan payments in the amount of $66,853.20. In addition, the court awarded Medifast its attorneys’ fees and costs in the amount of $45,231.05. The Court’s Order also requires the companies to abide by their post-termination obligations under the Franchise Agreements, including that they cease using Medifast’s confidential information. The case against the primary guarantor remains ongoing. Medifast recently filed for summary judgment against the guarantor for nonpayment and fraud – the remaining counts in the complaint on February 2, 2016. The guarantor filed a motion for summary judgment on the fraud claim and on February 2, 2016. Those motions are currently pending before the court.

 

Medifast granted franchise rights to operate 16 weight loss control Centers to franchisee TransformU, LLC (“TransformU”) in Virginia and Maryland in May and December, 2014. In connection with those transactions, Jason Properties, LLC (“Jason Properties”) assigned certain real estate leases and other liabilities in connection with the Centers, which were assumed by TransformU and guaranteed by TransformU’s principals, Ronald M. Fields, Jr. and James Smith. TransformU ceased operating the Centers, ceased paying fees pursuant to the governing franchise agreements, and ceased paying rent under the operative leases prior to the expiration of the lease terms.

 

On January 12, 2016, Medifast and Jason Properties filed suit against TransformU, Mr. Fields, and Mr. Smith in the United States District Court for the Eastern District of Virginia in a case entitled Jason Properties, LLC, et al. v. TransformU , et al. , Case No. 1:16-cv-35 AHH/JFA alleging that TransformU and Messrs. Fields and Smith defaulted on their obligations pursuant to the above-mentioned agreements and seeking in excess of $650,000 in damages. The action was dismissed with prejudice on February 5, 2016 by joint stipulation in accordance with the terms of a settlement agreement reached between the parties.

 

In addition to the above matters, the Company is, from time to time, subject to a variety of litigation and similar proceedings incidental to its business.   Based upon the Company’s experience, current information and applicable law, it does not believe that these proceedings and claims will have a material adverse effect .on its results of operations, financial position or liquidity.

 

ITEM 4. MINE SAFETY DISCLOSURES

 

Not applicable

 

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PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

 

The Company's common stock trades on the New York Stock Exchange (“NYSE”) under the symbol MED. The following table sets forth the low and high closing prices for the Company’s common stock as reported by the NYSE by fiscal quarters for 2015 and 2014:

 

    2015  
    Low     High  
Quarter Ended March 31, 2015     29.64       33.40  
Quarter Ended June 30, 2015     29.66       33.34  
Quarter Ended September 30, 2015     26.67       32.66  
Quarter Ended December 31, 2015     26.70       31.99  

 

    2014  
    Low     High  
Quarter Ended March 31, 2013     24.23       29.57  
Quarter Ended June 30, 2013     28.88       34.08  
Quarter Ended September 30, 2013     26.15       34.98  
Quarter Ended December 31, 2013     29.39       33.79  

 

Holders

 

There were approximately 112 record holders of the Company’s common stock as of March 1, 2016. This number does not include beneficial owners of our securities held in the name of nominees.

 

Dividends

 

Prior to the fourth quarter of 2015, the Company had not declared or paid any dividend since inception. On December 16, 2015, the Company’s board of directors declared a dividend of $0.25 per share to stockholders of record as of the close of business on December 28, 2015. Subsequent to December 31, 2015, the Company’s board of directors declared a dividend of $0.25 per share to stockholders of record as of the close of business on March 21, 2016, payable on May 10, 2015. The declaration and payment of dividends in the future will be determined by the Company’s board of directors in light of conditions then existing, including the Company’s earnings, financial condition, capital requirements and other factors. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations- Liquidity and Capital Resources.”

 

Securities Authorized for Issuance Under Equity Compensation Plans

 

The information under the heading “Securities Authorized for Issuance Under Equity Compensation Plans” will be filed in the Company’s definitive proxy statement for the 2015 annual meeting of stockholders and is incorporated herein by reference.

 

Issuer Purchases of Equity Securities

 

At the outset of the quarter ended December 31, 2015, there were 847,567 shares of the Company’s common stock eligible for repurchase under the repurchase authorization dated September 16, 2014.

 

No repurchases were made during the fourth quarter of 2015; however throughout the year 40,368 shares of common stock, at an average purchase price of $31.89, were surrendered by employees to the Company during 2015 for the payment of the minimum tax liability withholding obligations upon the vesting of shares of restricted stock.

 

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Performance Graph

The following graph compares the Company’s cumulative total stockholder return (Common Stock price appreciation plus dividends, on a reinvested basis) over the last five fiscal years with the Standard & Poor’s S&P 500 Index and the Company’s selected peer group, including NutriSystem Inc., Herbalife Ltd., USANA Health Sciences, and Weight Watchers International, Inc.

 

 

 

    12/10   12/11     12/12   12/13   12/14
                                         
Medifast, Inc.     100.00       47.51       91.38     90.48     116.17
S&P 500     100.00       102.11       118.45     156.82     178.29
Peer Group     100.00       138.28       108.88     184.28     117.72

 

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ITEM 6. SELECTED FINANCIAL DATA

 

The selected condensed consolidated financial data set forth below should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in Part II, Item 7 of this Report, and the consolidated financial statements and notes thereto of the Company included in Part II, Item 8 of this Report. The historical results provided below are not necessarily indicative of future results.

 

    2015     2014     2013     2012     2011  
(In thousands, except per share data)                                        
Revenue   $ 272,773     $ 285,285     $ 324,054     $ 318,571     $ 272,467  
Income from Operations     28,684       30,246       38,410       27,140       33,768  
Income from Continuing Operations before Income Taxes     29,671       31,693       39,043       28,356       34,067  
                                         
Basic EPS from continuing operations   $ 1.64     $ 1.66     $ 1.97     $ 1.34     $ 1.63  
Basic EPS     1.68       1.04       1.74       1.16       1.33  
Diluted EPS from continuing operations     1.62       1.65       1.96       1.34       1.60  
Diluted EPS     1.66       1.03       1.73       1.16       1.31  
Cash dividends declared per share     0.25       -       -       -       -  
                                         
Total Assets   $ 117,326     $ 115,910     $ 132,650     $ 130,251     $ 105,665  
Current Portion of long-term debt and capital lease facilities     219       232       222       528       1,426  
Total long-term debt and capital leases     -       242       474       3,809       4,251  
                                         
Weighted average shares outstanding                                        
Basic     11,959       12,670       13,774       13,722       13,965  
Diluted     12,071       12,778       13,818       13,740       14,198  

 

ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.

 

Critical Accounting Policies and Estimates

 

Our consolidated financial statements are prepared in accordance with U.S. generally accepted accounting principles (“GAAP”). Our significant accounting policies are described in Note 2 to the consolidated financial statements.

 

The preparation of our consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenue and expenses during the reporting period. Management develops, and changes periodically, these estimates and assumptions based on historical experience and on various other factors that are believed to be reasonable under the circumstances. Actual results may differ from these estimates under different assumptions or conditions. Management considers the following accounting policies to be the most critical in preparing our consolidated financial statements. These critical accounting policies have been discussed with our Audit Committee, as appropriate.

 

Revenue Recognition: Revenue is recognized net of discounts, rebates, promotional adjustments, price adjustments, and estimated returns and upon transfer of title and risk to the customer which occurs at shipping (F.O.B. terms). Upon shipment, the Company has no further performance obligations and collection is reasonably assured as the majority of sales are paid for prior to shipping. Medifast Weight Control Centers’ program fees were recognized over the estimated service period.

 

Impairment of Fixed Assets and Long-Lived Assets: We continually assess the impairment of long-lived assets whenever events or changes in circumstances indicate that the carrying value of the assets may not be recoverable. Judgments regarding the existence of impairment indicators are based on legal factors, market conditions and our operating performance. Future events could cause us to conclude that impairment indicators exist and the carrying values of fixed and intangible assets may be impaired. Any resulting impairment loss would be limited to the value of net fixed and intangible assets.

 

Income Taxes: The benefit of a tax position is recognized in the financial statements in the period during which, based on all available evidence, management believes it is more-likely-than-not that the position will be sustained upon examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated with other positions. Tax positions that meet the more-likely-than-not recognition threshold are measured as the largest amount of tax benefit that is more than 50 percent likely of being realized upon settlement with the applicable taxing authority. The portion of the benefits associated with tax positions taken that exceeds the amount measured as described above is reflected as a liability for unrecognized tax benefits in the accompanying balance sheet along with any associated interest and penalties that would be payable to the taxing authorities upon examination.

 

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We evaluated our tax positions and determined that we did not have any material uncertain tax positions. Our policy is to recognize interest and penalties accrued on uncertain tax positions as part of income tax expense. For the twelve months ended December 31, 2015 and 2014, no material estimated interest or penalties were recognized for the uncertainty of certain tax positions. We file income tax returns in the United States, Canada and various states jurisdictions. We are currently under audit by the IRS for 2010, but do not anticipate it to have a significant impact on previously reported results as well as benefits realized under our current tax structure. Other than 2010, we are no longer subject to U.S. federal, state, and local income tax examinations by tax authorities for the years before 2012.

 

Reserves for Returns: We review the reserves for customer returns at each reporting period and adjust them to reflect data available at that time. To estimate reserves for returns, we consider actual return rates in preceding periods. To the extent the estimate of returns changes, we will adjust the reserve, which will impact the amount of product sales revenue recognized in the period of the adjustment. Our estimates for returns have not differed materially from our actual returns. The provision for estimated returns as of December 31, 2015 and 2014 were $323,000 and $290,000, respectively.

 

Operating leases: Medifast leases retail stores, distribution facilities, and office space under operating leases. Many lease agreements contain tenant improvement allowances, rent holidays, rent escalation clauses and contingent rent provisions. The Company recognizes incentives and minimum rental expenses on a straight-line basis over the terms of the leases. We commence recording rent expense on the date of initial possession, which is generally when we enter the space and begin to make improvements to properties for our intended use. For tenant improvement allowances and rent holidays, we record a deferred rent liability on the consolidated balance sheets and amortize the deferred rent over the terms of the leases as reductions to rent expense on the consolidated statements of income.

 

For scheduled rent escalation clauses during the lease terms or for rental payments commencing at a date other than the date of initial occupancy, we record minimum rental expenses on a straight-line basis over the terms of the leases on the consolidated statements of income. Several leases provide for contingent rents, which are determined as a percentage of gross sales in excess of specified levels. We record a contingent rent liability on the consolidated balance sheets and the corresponding rent expense when we determine achieving specified levels is probable.

 

Background

 

The Company is engaged in the production, distribution, and sale of weight loss, weight management, and healthy living products and other consumable health and diet products. The Company’s product lines include weight loss, weight management, and healthy living meal replacements, snacks, hydration products and vitamins. Our product sales accounted for 97% of our revenues in 2015 and 98% of our revenues in 2014.

 

We review and analyze a number of key operating and financial metrics to manage our business, including revenue to advertising spend, number of active Health Coaches and average monthly revenue generated per Health Coach in the Take Shape For Life® channel.

 

In 2014, the Company exited the MWCC corporate center model with the sale of 41 Centers to existing franchise partners and the closure of the remaining 34 corporate Centers. The assets, liabilities, operating results, and cash flows of the MWCC corporate center channel have been presented separately as discontinued operations in the consolidated financial statements for all periods presented.

 

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CONSOLIDATED RESULTS OF OPERATIONS

2015 COMPARISON WITH 2014

 

Overview of the Twelve Months Ended December 31, 2015 Compared to the Twelve Months Ended December 31, 2014

 

    Twelve Months Ended December 31,  
    2015     2014     $ Change     % Change  
                         
Revenue   $ 272,773,000     $ 285,285,000     $ (12,512,000 )     -4 %
Cost of sales     71,458,000       76,078,000       (4,620,000 )     -6 %
Gross Profit     201,315,000       209,207,000       (7,892,000 )     -4 %
                                 
Selling, general, and administrative costs     172,631,000       178,961,000       (6,330,000 )     -4 %
                                 
Income from operations     28,684,000       30,246,000       (1,562,000 )     -5 %
                                 
Other income                                
     Interest income, net     661,000       716,000       (55,000 )     -8 %
     Other income     326,000       731,000       (405,000 )     -55 %
      987,000       1,447,000       (460,000 )     -32 %
                                 
Income from continuing operations before income taxes     29,671,000       31,693,000       (2,022,000 )     -6 %
Provision for income tax expense     10,104,000       10,664,000       (560,000 )     -5 %
                                 
Income from continuing operations     19,567,000       21,029,000       (1,462,000 )     -7 %
Income (Loss) from discontinued operations, net of tax     491,000       (7,848,000 )     8,339,000       -106 %
Net income   $ 20,058,000     $ 13,181,000     $ 6,877,000       52 %
                                 
% of revenue                                
                                 
Gross Profit     73.8 %     73.3 %                
Selling, general, and administrative costs     63.3 %     62.7 %                
Income from Operations     10.5 %     10.6 %                

 

Revenue: Revenue decreased to $272.8 million in 2015 compared to $285.3 million in 2014, a decrease of $12.5 million. The Take Shape For Life® sales channel accounted for 74.1%, the Medifast Direct channel accounted for 17.8%, the Franchise Medifast Weight Control Centers channel accounted for 6.3%, and the Medifast Wholesale channel accounted for 1.8% of total revenue. The year to date revenue to spend ratio for continuing operations for 2015 was 17.9-to-1 compared to 16.8-to-1 for 2014. Total advertising spend, inclusive of broker fees, for continuing operations was $15.3 million in 2015 compared to $17.0 million in 2014.

 

Take Shape For Life® revenue decreased 2% to $202.2 million in 2015 compared with $206.7 million in 2014.  The decline in revenue for Take Shape For Life® was caused by the Company having less active Health Coaches and clients coming out of 2014 as compared to 2013, driving down revenues in the first three quarters of 2015.  This impact was partially offset by a price increase in the first quarter of 2015. 

 

In 2014, the Company defined active Health Coaches as Health Coaches earning income from a product sale in the last month of the quarter. However, in order to provide a more accurate depiction of the number of Health Coaches contributing to Take Shape For Life revenues, the Company began reporting a new active Health Coach count and average revenue per active Health Coach in the first quarter of 2015. The number of active Health Coaches is now reported as the number of earning coaches each quarter instead of the number of earning Health Coaches in the last month of the quarter. The average revenue per Health Coach will now be calculated on a quarterly basis instead of an average month within the quarter. These new quarterly measurements provide a more consistent metric for quarterly comparison. The number of active Health Coaches and quarterly revenue per Health Coach rebounded in the quarter ended December 31, 2015, in which the number of active Health Coaches increased to 11,900 compared with 11,700 for the quarter ended December 31, 2014, an increase of 2%.  For the same period, the average quarterly revenue per Health Coach increased to $4,039 in 2015 from $3,896 in 2014.

 

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The new and historical metrics for the prior period are as follows:

 

Reporting
Period 		  New Active Health
Coaches 		    Historical Active
Health Coaches 		    New Revenue per
Health Coach 		    Historical Revenue
 per Health Coach 		 
Q4 2014     11,700       9,300     $ 3,896     $ 1,401  

 

Medifast Direct Sales revenue decreased 15% to $48.7 million in 2015 as compared with $57.2 million in 2014, a decrease of $8.5 million. Revenues in this channel are driven primarily by targeted customer marketing and advertising. Sales were down in comparison to 2014 as new customer acquisition continues to be challenging. To optimize profitability, we decreased our advertising spend in 2015 by 10.1% in comparison to 2014.

 

Franchise Medifast Weight Control Centers channel revenue increased 11% year-over-year, with revenue of $17.1 million in 2015 compared to $15.4 million in 2014. Sixty-one franchise centers were in operation as of December 31, 2015, as compared to 73 Centers as of December 31, 2014. Twelve Centers were closed during the year, including 10 corporate centers that were transitioned to the franchise model in June of 2014. The increase in revenue was the result of sales derived from corporate centers that were transitioned to the franchise model in June 2014 and December 2014, partially offset by decreased sales per Center and the closure of two Centers opened greater than a year.

 

Medifast Wholesale revenue decreased 20%, or $1.2 million, to $4.8 for the year ended December 31, 2015 compared to $6.0 million for the year ended December 31, 2014. The decrease was due to the loss of certain accounts resulting from Medifast’s enforcement of business partner compliance distribution requirements.

 

Costs of Sales : Cost of sales decreased $4.6 million in 2015 to $71.5 million as compared to $76.1 million in 2014, primarily due to decreased sales volumes. As a percentage of sales, gross margin increased to 73.8% in 2015 from $73.3% in 2014. The gross margin improvement was primarily driven by price increases and shipping efficiencies recognized during the year.

 

Selling, General and Administrative Costs : Selling, general and administrative expenses decreased by $6.3 million compared to 2014. As a percentage of sales, selling, general and administrative expenses increased to 63.3% versus 62.7% in 2014. Selling general and administrative costs include $2.1 million and $2.6 million for 2015 and 2014, respectively, of extraordinary legal expenses resulting from certain Schedule 13D filings. Fiscal year 2014 also includes a $2.0 million accrual for a franchise loan default guaranteed by Medifast. Excluding these items, selling, general, and administrative expense decreased $3.8 million. Adjusted selling, general, and administrative expenses as a percentage of sales increased to 62.5% of sales in 2015 as compared to 61.1% in 2014.

 

Take Shape For Life® commission expense, which is variable based upon product sales, decreased by approximately $2.1 million, or 2.5%, which is in line with the 2% decrease in revenue year-over-year. Health Coaches are compensated on product sales referred to the Company. Health Coaches can earn compensation under the Integrated Compensation Plan in two ways:

 

· Commissions: The primary way a Health Coach is compensated is through earning commissions on product sold to their clients. Health Coaches earn commissions by selling products through their own replicated website or through the Company’s in-house call center. The clients of Health Coaches are responsible for ordering and paying for products, and their order is shipped directly from the Company to the client’s home or designated address. Our Health Coaches do not handle payments and are not required to purchase or store products in order to receive a commission. In addition, Health Coaches do not receive a commission on their own personal product orders. Health Coaches pay the same price for products as their clients. The Company pays retail commissions to qualified Health Coaches on a weekly basis.
· Bonuses: Health Coaches are offered several bonus opportunities for acquiring clients, sponsoring Health Coaches and helping them to build their business, and sponsoring Health Coaches who become higher ranking leaders. The purposes of these bonuses are to reward Health Coaches for successfully growing and supporting their clients and to incentivize Health Coaches to further support and develop other Health Coaches within their team.

 

Health Coaches do not earn a commission or bonus when they recruit a new Health Coach into the Take Shape For Life® network. Fees paid by new Health Coaches for start-up materials are at the Company’s approximate cost.

 

Salaries and benefits increased by approximately $0.6 million in 2015 as compared to 2014. The year-over-year increase was driven by higher bonus expenses and medical costs, partially offset by a reduction in salaries and benefits resulting from lower headcount and a decrease in stock compensation expense.

 

Sales and marketing expense decreased by $1.3 million in 2015 as compared to the prior year as a result of lower advertising spend and a decrease in expenses associated with the Take Shape For Life® annual convention. Total advertising spend was $15.3 million in 2015 versus $17.0 million in 2014. The decrease in spending was offset by an increase in production costs for the Medifast commercials that aired in the first quarter of 2015 and an increase in the Company’s research and development costs related to an ongoing study.

 

General expenses decreased $2.2 million in 2015 as compared to 2014. Included in 2014, was the recording of a $2.0 million default of a franchise loan agreement. Excluding this, the year-over-year change would have been $0.2 million and was driven by a decrease in legal expenses. The decrease in legal fees is largely due to the settlement agreement with Engaged Capital, LLC that was reached during the first quarter, limiting the extraordinary legal fees incurred during 2015. These savings were partially offset by an increase in accounting expenses and costs associated with retaining GKV as the Company’s marketing and advertising agency.

 

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Other expenses decreased by $1.1 million for the year ended December 31, 2015 compared to the year ended December 31, 2014. The improvement was due to a decrease in depreciation expense and a reduction in credit card fees due to reduced revenues. These improvements were partially offset by an increase in licenses and fees.

 

Income taxes : In 2015, the Company recorded $10.1 million in income tax expense, an effective tax rate of 34.1%. In 2014, the Company recorded 10.7 million in income tax expense, an effective tax rate of 33.6%. The increase in the effective tax rate in 2015 over 2014 was the result of benefits realized in 2014 from research and development credits that were retroactive to 2010. The Company anticipates a tax rate of approximately 33 – 34% in 2016.

 

Income from continuing operations: Income from continuing operations was $19.6 million in 2015 as compared to $21.0 million in 2014, a decrease of $1.4 million. Pre-tax profit as a percent of sales decreased to 10.9% for the year ended December 31, 2015 compared to 11.1% for the year ended December 31, 2014. The year to date decrease in income is a result of the reduced sales offset by the Company’s efforts to manage expenses. Excluding the extraordinary legal expenses in 2015 and 2014 and the accrued franchise loan obligation in 2014, income from continuing operations would have been $20.9 million, or $1.73 per share, for the year ended December 31, 2015 and $24.1 million, or $1.89 per share, for the year ended December 31, 2014.

 

Loss from discontinued operations: In 2014, the Company exited the MWCC corporate center model with the sale of 41 Centers to existing franchise partners and the closure of the remaining 34 corporate centers. The Company had $0.5 million in income from discontinued operations in 2015 compared to a $7.8 loss from discontinued operations in 2014. The income generated in 2015 was primarily the result of the settlement of lease agreements offset by incremental closure costs incurred during the year.

 

Net income: Net income was $20.1 million in 2015 compared to $13.2 million in 2014. The year-over-year change was driven by the factors described above in the explanations for income from continuing operations and loss from discontinued operations.

 

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CONSOLIDATED RESULTS OF OPERATIONS

2014 COMPARISON WITH 2013

 

Overview of the Twelve Months Ended December 31, 2014 Compared to Twelve Months Ended December 31, 2013

 

    Twelve Months Ended December 31,  
    2014     2013     $ Change     % Change  
                         
Revenue   $ 285,285,000     $ 324,054,000     $ (38,769,000 )     -12 %
Cost of sales     76,078,000       83,488,000       (7,410,000 )     -9 %
Gross Profit     209,207,000       240,566,000       (31,359,000 )     -13 %
                                 
Selling, general, and administrative costs     178,961,000       202,156,000       (23,195,000 )     -11 %
                                 
Income from operations     30,246,000       38,410,000       (8,164,000 )     -21 %
                                 
Other income                                
Interest income, net     716,000       509,000       207,000       41 %
Other income     731,000       124,000       607,000       490 %
      1,447,000       633,000       814,000       129 %
                                 
Income from continuing operations before income taxes     31,693,000       39,043,000       (7,350,000 )     -19 %
Provision for income tax expense     10,664,000       11,908,000       (1,244,000 )     -10 %
                                 
Income from continuing operations     21,029,000       27,135,000       (6,106,000 )     -23 %
Income (Loss) from discontinued operations, net of tax     (7,848,000 )     (3,166,000 )     (4,682,000 )     148 %
Net income   $ 13,181,000     $ 23,969,000     $ (10,788,000 )     -45 %
                                 
                                 
% of revenue                                
                                 
Gross Profit     73.3 %     74.2 %                
Selling, general, and administrative costs     62.7 %     62.4 %                
Income from Operations     10.6 %     11.9 %                

 

Revenue: Revenue decreased to $285.3 million in 2014 compared to $324.1 million in 2013, a decrease of $38.8 million. The Take Shape For Life® sales channel accounted for 72.5%, the Medifast Direct channel accounted for 20.0%, the Franchise Medifast Weight Control Centers channel accounted for 5.4%, and the Medifast Wholesale channel accounted for 2.1% of total revenue. The year to date revenue to spend ratio for continuing operations for 2014 was 16.8-to-1 compared to 14.7-to-1 for 2013. Total advertising spend, inclusive of broker fees, for continuing operations was $17.0 million in 2014 compared to $22.1 million in 2013.

 

Take Shape For Life® revenue decreased 10% to $206.7 million in 2014 compared with $228.7 million in 2013. The decrease in revenue for Take Shape For Life® was driven by a decrease in the number of active Health Coaches and revenue per Health Coach along with the accrued impact from the creation of the new BeSlim Club loyalty program. Utilizing the new quarterly metrics, the number of active Health Coaches at the end of 2014 decreased to 11,700 compared with 12,800 during the period a year ago, a decrease of 11%. The average revenue per Health Coach per quarter decreased to $3,896 in 2014 from $4,047 in 2013. Approximately half of the decrease of the Health Coach count was due to having less pay periods used in the calculation versus the number of pay periods used in the prior year.

 

As discussed above, the Company redefied the active Health Coach and revenue per active Health Coach metrics in the first quarter of 2015. The new and historical metrics for the two periods presented are as follows:

 

Reporting   New Active Health     Historical Active     New Revenue per     Historical Revenue  
Period   Coaches     Health Coaches     Health Coach     per Health Coach  
Q4 2014     11,700       9,300     $ 3,896     $ 1,401  
Q4 2013     12,800       10,500     $ 4,047     $ 1,477  

  

Medifast Direct Sales revenue decreased 24% to $57.2 million as compared with $75.5 million in 2013, a decrease of $18.3 million. Revenues in this channel are primarily driven by targeted customer advertising on-line, across local radio, via email and direct mail campaigns, and by highlighting customer successes in large national publications and on television. The Company experienced lower marketing efficiencies and new customer acquisition during the year; and therefore, reduced marketing spending to optimize profitability. The Company’s decision to reduce spending impacted the year-over-year revenue for the channel. As compared to 2013, the Company increased fourth quarter spending in an effort to drive 2015 sales.

 

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Franchise Medifast Weight Control Centers channel revenue increased 1% year-over-year, with revenue of $15.4 million in 2014 compared to $15.3 million in 2013. There were 73 franchise centers in operation as of December 31, 2014, including 19 corporate centers that were transitioned in June 2014 and 17 corporate centers that were transitioned in December 2014. There were 17 franchise centers that closed during 2014, including 5 Centers transitioned to the franchise model in June 2014 and 7 Centers opened during 2014. There were 41 franchise centers in operation as of December 31, 2013. The increase in revenue was driven by the conversion of corporate centers over to Franchise Centers offset by franchise center closures as well as a decrease in sales of franchise centers open greater than one year.

 

Medifast Wholesale revenue increased 30%, or $1.4 million, to $6.0 for the year ended December 31, 2014 compared to $4.6 million for the year ended December 31, 2013. The increase was driven by a reallocation of internal sales resources to improve revenue in the channel for both domestic and international customers.

 

Costs of Sales: Cost of sales decreased $7.4 million in 2014 to $76.1 million as compared to $83.5 million in 2013. As a percentage of sales, gross margin decreased from 74.2% in 2013 to $73.3% in 2014, which was the result of increased year-over-year product costs primarily driven by a reduction in manufacturing volumes.

 

Selling, General and Administrative Costs: Selling, general and administrative expenses decreased by $23.2 million compared to 2013. As a percentage of sales, selling, general and administrative expenses increased to 62.7% versus 62.4% in 2013. Included in selling general and administrative costs for 2014 are $2.6 million in extraordinary legal expenses resulting from certain Schedule 13D filings and a $2.0 million accrual for a franchise loan default guaranteed by Medifast. Excluding these items, selling, general, and administrative expense as a percentage of sales would have been 61.1%, a decrease of 130 basis points compared to 2013.

 

Take Shape For Life® commission expense, which is variable based upon product sales, decreased by approximately $15.6 million, or 15.4%, as a result of a new compensation plan introduced in late 2013 and a 10% decrease in sales for the channel.

 

Salaries and benefits decreased by approximately $3.5 million in 2014 as compared to 2013. The year-over-year decrease was driven by reductions in bonuses, salaries, and medical expenses resulting from the Company’s continued focus on headcount. These improvements were partially offset by an increase in stock compensation expense.

 

Sales and marketing expense decreased by $5.1 million in 2014 as compared to the prior year as a result of lower advertising expenses. The Company continues to focus on efficiency improvements and balancing sales and marketing expense in an effort to drive profitability. The Company increased year-over-year fourth quarter revenue spending in an effort to drive 2015 sales.

 

General expenses increased $3.0 million in 2014 as compared to 2013. The year-over-year change was driven by a $2.0 million accrual relating to a default on a franchise loan guaranteed by Medifast and an increase in legal expenses, inclusive of $2.6 million in extraordinary expenses resulting from certain Schedule 13D filings. These were partially offset by a decrease in information technology consulting fees.

 

Other expenses consisting primarily of depreciation and credit card processing fees, decreased by $1.7 million. The decrease in expenses for the period was the result of a reduction in credit card fees due to reduced revenues and the final settlement of Voluntary Disclosure Agreement’s (VDA) accrued in 2012 and issued in 2013.

 

Income taxes: In 2014, the Company recorded $10.7 million in income tax expense, an effective rate of 33.6%. In 2013, the Company recorded $11.9 million in income tax expense, an effective rate of 30.5%. The increase in the effective tax rate in 2014 over 2013 was a result of benefits realized in 2013 from research and development credits of $0.5 million that were retroactive to 2012, as well as realizing benefits of $0.8 million from extensive state income tax restructuring (to take advantage of apportionment methodology) which also related to prior years. As a manufacturing entity based in Maryland, in 2013 the Company adopted the single sales factor apportionment method in addition to claiming new state jobs credits and research and development credits. The Company anticipates a tax rate of approximately 33 – 34% in 2015.

 

Income from continuing operations: Income from continuing operations was $21.0 million in 2014 as compared to $27.1 million in 2013, a decrease of $6.1 million. Income from operations decreased by $8.2 million, or 21%, versus 2013 with the percent of sales decreasing to 10.6% in 2014 as compared to 11.9% in 2013. The year-over-year decrease in profitability was primarily driven by the 11.9% reduction in sales coupled with an increase in product costs, a $1.8 million after tax extraordinary legal and advisory expenses incurred in relation to the certain Schedule 13D filings and a $1.3 million after tax accrual relating to a default on a franchise loan guaranteed by Medifast. These negative impacts to profits were partially offset by the Company’s continued efforts to closely monitor spending as demonstrated in the decrease in selling, general, and administrative expenses outlined above.

 

Loss from discontinued operations: In 2014, the Company exited the MWCC corporate center model by selling 41 Centers to existing franchise partners (24 Centers were sold in June 2014 and the remaining 17 Centers were sold in December 2014) and closing the remaining 34 corporate centers. Loss from discontinued operations was $7.8 million in 2014 as compared to $3.1 million in 2013, a decrease of $4.7 million. The year-over-year decrease includes the $8.6 million pre-tax, $5.2 million after-tax, charge for the closure of 34 Centers in December 2014. This charge includes $0.6 million for one-time termination benefits, $4.4 million for closed clinic lease obligations, $3.3 million for impaired assets, and $0.5 million in other facility related closure costs. These exit activity costs were partially offset by a gain of $0.2 million on the sale of Centers.

 

  24  

 

 

Net income: Net income was $13.2 million in 2014 compared to $24.0 million in 2013. The year-over-year change was driven by the factors described above in the explanations for income from continuing operations and loss from discontinued operations.

 

Non-GAAP Financial Measures

 

In addition to providing results that are determined in accordance with GAAP, the Company provides certain non-GAAP financial measures. The Company’s 2015 and 2014 non-GAAP financial measures of adjusted net income and adjusted diluted earnings per share exclude the charges the Company incurred in relation to extraordinary legal expenses in connection with the Schedule 13D filings. The 2014 results also exclude a franchise loan default guaranteed by Medifast. Because all of these charges are unique events, not directly related to the Company’s normal operations, the Company believes these non-GAAP financial measures may help investors better understand and compare our operating results and trends by eliminating this component.

 

The reconciliations of these non-GAAP financial measures are as follows:

 

    Years Ended December 31,  
    2015     2014     2013  
                   
Income from operations   $ 28,684,000     $ 30,246,000     $ 38,410,000  
Adjustments                        
Franchise loan guarantee accrual     -       1,980,000       -  
Legal expenses- 13D     2,084,000       2,597,000       -  
Adjusted Income from operations   $ 30,768,000     $ 34,823,000     $ 38,410,000  

 

    Years Ended December 31,  
    2015     2014     2013  
                   
Income from continuing operations   $ 19,567,000     $ 21,029,000     $ 27,135,000  
Adjustments                        
Franchise loan guarantee accrual     -       1,342,000       -  
Legal expenses- 13D     1,374,000       1,761,000       -  
Adjusted income from continuing operations   $ 20,941,000     $ 24,132,000     $ 27,135,000  
Loss on discontinued operations, net of tax     491,000       (7,848,000 )     (3,166,000 )
Adjusted Net Income   $ 21,432,000     $ 16,284,000     $ 23,969,000  
                         
Diluted earnings per share from continuing operations   $ 1.62     $ 1.65     $ 1.96  
Impact for adjustments     0.11       0.24       -  
Adjusted diluted earnings per share continuing operations   $ 1.73     $ 1.89     $ 1.96  
Diluted Loss per share from discontinued operations   $ 0.04     $ (0.62 )   $ (0.23 )
Adjusted diluted earnings per share   $ 1.77     $ 1.27     $ 1.73  

 

The weighted-average diluted shares outstanding used in the calculation of theses non-GAAP financial measures are the same as the weighted-average shares outstanding used in the calculation of the reported per share amounts.

 

Excluding the impact of the $2.1 million extraordinary legal expenses incurred in connection with the Schedule 13D filings for the year ended December 31, 2015 and the impact of the $2.0 million franchise loan guarantee and the $2.6 extraordinary legal expenses incurred in connection with the 13D filings for the year ended December 31, 2014, income from operations decreased $4.0 million to $30.8 million from $34.8 million. Adjusted income from continuing operations for the year ended December 31, 2015 decreased to $20.9 million from income from adjusted continuing operations of $24.1 million for the year ended December 31, 2014. Adjusted net income for the year ended December 31, 2015 increased to $21.4 million from net income of $16.3 million for the year ended December 31, 2014. Adjusted diluted earnings per share from continuing operations for the year ended December 31, 2015 decreased to $1.73 as compared to adjusted diluted earnings per share from continuing operations of $1.89 for the same period in 2014. Adjusted diluted earnings per share for the year ended December 31, 2015 increased to $1.77 as compared to adjusted diluted earnings per share of $1.27 for the same period in 2014.

 

  25  

 

  

LIQUIDITY AND CAPITAL RESOURCES

 

The Company had stockholders’ equity of $88.6 million and working capital of $64.5 million on December 31, 2015 compared with $80.5 million and $55.0 million at December 31, 2014, respectively. The $8.1 million net decrease in stockholder’s equity reflects $20.1 million in 2015 profits offset by the $10.5 million used to purchase shares of the Company’s common stock as well as other equity transactions as outlined in the “Consolidated Statement of Changes in Stockholders’ Equity” included in our consolidated financial statements. The Company also declared a dividend of $0.25 per share to its common stockholders during the fourth quarter of 2015 which was paid in the first quarter of 2016. Subsequent to December 31, 2015, the Company’s board of directors declared a dividend of $0.25 per share to stockholders of record as of the close of business on March 21, 2016, payable on May 10, 2015. While we intend to continue the dividend program and believe we will have sufficient liquidity to do so, we can provide no assurance we will be able to continue the declaration and payment of dividends. The Company’s cash and cash equivalents position increased from $24.5 million at December 31, 2014 to $42.0 million at December 31, 2015.

 

In the year ended December 31, 2015 the Company generated cash flow of $33.1 million from continuing operations, partially attributable to $19.6 million in income from continuing operations. Cash provided by operating activities of $16.5 million primarily includes depreciation and amortization of $7.1 million, a $3.6 million decrease in prepaid income taxes, share-based compensation of $3.1 million, a decrease in inventory of $2.4 million, and a $0.3 million decrease in other assets. This was offset by cash used by operating activities of $3.0 million including a $2.4 million decrease in accounts payable and accrued expenses, a $0.5 million net realized gain on investment securities, and deferred income taxes of $0.1 million.

 

Net cash used in operating activities from discontinued operations was $3.7 million including income from discontinued operations of $0.5 million. Cash provided by operating activities from discontinued operations totaled $2.6 million and includes a non-cash benefit of $2.4 million for deferred taxes and a $0.1 decrease in inventory. Cash used by operating activities from discontinued operations of $6.8 million include a $6.5 million decrease in accounts payable and accrued expenses and a $0.3 million increase in accounts receivable.

 

In the year ended December 31, 2015, net cash used in investing activities from continuing operations was $0.2 million, which was due to $9.3 million for the purchase of investment securities offset by $11.9 million of cash generated by the sale of investment securities and $2.8 million for the purchase of property and equipment.

 

In the year ended December 31, 2015, financing activities from continuing operations used $11.7 million in cash. The Company used $10.5 million to purchase shares of the Company’s common stock in the open market, to repurchase shares of the Company’s common stock to cover employee taxes of $1.3 million, and to repay $0.3 million in capital leases. The Company realized a cash benefit for excess tax benefits from share-based compensation in the amount of $0.2 million. As of December 31, 2015, there are 847,567 shares of the Company’s common stock eligible for repurchase under the repurchase authorization dated September 16, 2014.

 

In the year ended December 31, 2015, the Company had a non-cash benefit of $0.1 million related to foreign currency translation.

 

In pursuing its business strategy, the Company may require additional cash for operating and investing activities. The Company expects future cash requirements, if any, to be funded from operating cash flow and financing activities.

 

The Company evaluates acquisitions from time to time as presented.

 

Contractual Obligations and Commercial Commitments

 

The Company has the following contractual obligations as of December 31, 2015: 

 

    Less Than 1
Year 		    1 - 3 Years     Total  
                   
Operating Leases (a)   $ 1,330,000     $ 1,026,000     $ 2,356,000  
Operating Leases for Closed MWCC Centers (b)     409,000       252,000       661,000  
Operating Leases for Sold MWCC Centers (c)     1,090,000       866,000       1,956,000  
Capital Leases (d)     225,000       -       225,000  
                         
Total contractual obligations   $ 3,054,000     $ 2,144,000     $ 5,198,000  

 

(a) The Company has operating leases in place for leased corporate offices, our Texas Distribution center, our raw materials warehouse, and the Company’s printers.
(b) The Company has 10 operating leases in place that extend beyond December 31, 2015 for closed Medifast Corporate Weight Control Centers. The Company is actively seeking to reach lease termination agreements on these obligations and settled three termination agreements during the first quarter of 2016. These Centers made up $143,000, and $162,000 of the costs above for the periods less than 1 year and 1-3 years, respectively.
(c) The Company has 31 operating leases in place that extend beyond December 31, 2015 for previous Medifast Corporate Weight Control Centers sold to franchise partners. The Company remains named on the leases, however the obligations have been subleased to the franchisees.

 

  26  

 

 

(d) The Company leases large commercial printers for our printing operations that are accounted for as capital leases, these obligations are detailed in Note 7 of the consolidated financial statements.

 

INFLATION

 

To date, inflation has not had a material effect on the Company's business.

 

ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Market risk is the potential loss arising from adverse changes in market rates and prices, such as interest rates and a decline in the stock market. The Company does not enter into derivatives, foreign exchange transactions or other financial instruments for trading or speculative purposes. The Company paid off its outstanding debt during the first quarter of 2013, eliminating our current exposure to interest rate risk.

 

We are exposed to market risk related to changes in interest rates and market pricing impacting our investment portfolio. Our current investment policy is to maintain an investment portfolio consisting mainly of U.S. money market and high-grade corporate securities, directly or through managed funds. Our cash is deposited in and invested through highly rated financial institutions in North America. Our marketable securities are subject to interest rate risk and market pricing risk and will fall in value if market interest rates increase or if market pricing decreases. If market interest rates were to increase and market pricing were to decrease immediately and uniformly by 10% from levels at December 31, 2015, we estimate that the fair value of our investment portfolio would decline by an immaterial amount and therefore we would not expect our operating results or cash flows to be affected to any significant degree by the effect of a change in market conditions on our investments.

 

ITEM 8. FINANCIAL STATEMENTS

 

The information required by this item is set forth on pages 33 to 50 hereto and incorporated by reference herein.

 

ITEM 9. CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURES

 

There were no disagreements with the Company’s independent auditors, regarding accounting and financial disclosures for the fiscal year ending December 31, 2015.

 

ITEM 9A. CONTROLS AND PROCEDURES

 

Disclosure Controls and Procedures

 

In accordance with Exchange Act Rule 13a-15(e), we carried out an evaluation, under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures as required by Exchange Act Rule 13a-15(b) as of the end of the period covered by this report. Based upon that evaluation, our management has concluded that our disclosure controls and procedures are effective as of December 31, 2015.

 

Management’s Report on Internal Control over Financial Reporting

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company. Internal control over financial reporting is a process to provide reasonable assurance regarding the reliability of our financial reporting for external purposes in accordance with accounting principles generally accepted in the United States of America. Internal control over financial reporting includes maintaining records that in reasonable detail accurately and fairly reflect our transactions, providing reasonable assurance that transactions are recorded as necessary for preparation of our financial statements, providing reasonable assurance that receipts and expenditures of Company assets are made in accordance with management authorization, and providing reasonable assurance that unauthorized acquisition, use or disposition of Company assets that could have a material effect on our financial statements would be prevented or detected on a timely basis. Because of its inherent limitations, internal control over financial reporting is not intended to provide absolute assurance that a misstatement of our financial statements would be prevented or detected.

 

Management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013. Based on this evaluation, our management concluded that the Company’s internal control over financial reporting was effective as of December 31, 2015.

 

The effectiveness of the Company’s internal control over financial reporting as of December 31, 2015, was audited by RSM US LLP, our independent registered public accounting firm, as stated in their report appearing below.

 

Changes in our Internal Control

 

No change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) occurred during the fourth quarter ended December 31, 2015 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

  27  

 

 

Limitations on the Effectiveness of Controls

 

Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls or our internal controls will prevent or detect all errors and all fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Controls can also be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. The design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with associated policies or procedures. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.

 

  28  

 

 

Report of Independent Registered Public Accounting Firm

 

To the Board of Directors and Stockholders of

Medifast, Inc.

 

We have audited Medifast, Inc. and subsidiaries’ (the “Company”) internal control over financial reporting as of December 31, 2015, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013. The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying “Management’s Report on Internal Control Over Financial Reporting” . Our responsibility is to express an opinion on the Company's internal control over financial reporting based on our audit.

 

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

 

A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that ( a ) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; ( b ) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and ( c ) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2015, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013.

 

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets as of December 31, 2015 and 2014, and the related consolidated statements of income, comprehensive income, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2015 of the Company and our report dated March 15, 2016 expressed an unqualified opinion.

 

/s/ RSM US LLP

 

Baltimore, Maryland

March 15, 2016

 

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ITEM 9B. OTHER INFORMATION

 

Not applicable

 

  30  

 

 

PART III

 

ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

 

Information required by this item is incorporated herein by reference from the Company’s definitive proxy statement for the 2016 annual meeting of stockholders.

 

ITEM 11. EXECUTIVE COMPENSATION

 

Information required by this item is incorporated herein by reference from the Company’s definitive proxy statement for the 2016 annual meeting of stockholders.

 

ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

 

Information required by this item is incorporated herein by reference from the Company’s definitive proxy statement for the 2016 annual meeting of stockholders.

 

ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

 

Information required by this item is incorporated herein by reference from the Company’s definitive proxy statement for the 2016 annual meeting of stockholders.

 

ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES

 

Information required by this item is incorporated herein by reference from the Company’s definitive proxy statement for the 2016 annual meeting of stockholders.

 

  31  

 

 

PART IV

 

ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

 

The following documents are filed as part of this Report

 

(a)    1. Financial Statements

 

See Index to the Consolidated Financial Statements on page 33 of this Report

 

2. Financial Statement Schedules

 

None, as all information required in these schedules is included in the Notes to the Consolidated Financial Statements.

 

  3. Exhibits

 

Reference is made to the Exhibit Index on page 51 of this Report for a list of exhibits required by Item 601 of Registration S-K to be filed as part of this Report.

 

  32  

 

 

MEDIFAST, INC. AND SUBSIDIARIES

 

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

Report of Independent Registered Public Accounting Firm   34
     
Consolidated Balance Sheets   35
     
Consolidated Statements of Income   36
     
Consolidated Statements of Comprehensive Income   37
     
Consolidated Statements of Changes in Stockholders’ Equity   38
     
Consolidated Statements of Cash Flows   39
     
Notes to Consolidated Financial Statements   40

 

  33  

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Stockholders of

Medifast, Inc.

 

We have audited the consolidated balance sheets of Medifast, Inc. and subsidiaries (the “Company”) as of December 31, 2015 and 2014, and the related consolidated statements of income, comprehensive income, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2015. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.

 

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Medifast, Inc. and subsidiaries as of December 31, 2015 and 2014, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2015, in conformity with U.S. generally accepted accounting principles.

 

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company’s internal control over financial reporting as of December 31, 2015, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013, and our report dated March 15, 2016 expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.

 

/s/ RSM US LLP

 

Baltimore, Maryland

March 15, 2016

 

  34  

 

 

MEDIFAST, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

As of December 31, 2015 and 2014

 

    2015     2014  
             
ASSETS                
Current assets:                
Cash and cash equivalents   $ 42,037,000     $ 24,459,000  
Accounts receivable-net of allowance for sales returns and doubtful accounts of $417,000 and $354,000     1,633,000       1,650,000  
Inventory     13,335,000       15,735,000  
Investment securities     25,072,000       28,185,000  
Income taxes, prepaid     1,549,000       5,099,000  
Prepaid expenses and other current assets     2,886,000       2,875,000  
Deferred tax assets     1,208,000       3,727,000  
Current assets of discontinued operations     353,000       184,000  
Total current assets     88,073,000       81,914,000  
                 
Property, plant and equipment - net     29,029,000       33,477,000  
Other assets     205,000       497,000  
Long-term assets of discontinued operations     19,000       22,000  
                 
TOTAL ASSETS   $ 117,326,000     $ 115,910,000  
                 
LIABILITIES AND STOCKHOLDERS' EQUITY                
Current liabilities:                
Accounts payable and accrued expenses   $ 22,504,000     $ 21,854,000  
Current maturities of capital leases     219,000       232,000  
Current liabilities of discontinued operations     841,000       4,858,000  
Total current liabilities     23,564,000       26,944,000  
                 
Other liabilities:                
Capital leases, net of current portion     -       242,000  
Deferred tax liabilities     4,890,000       5,492,000  
Long-term liabilities of discontinued operations     288,000       2,756,000  
Total liabilities     28,742,000       35,434,000  
                 
Stockholders' Equity:                
Common stock; par value $.001 per share; 20,000,000 shares authorized; 12,013,952 and 12,365,690 issued 11,796,774 and 12,075,764 issued and outstanding     12,000       12,000  
Additional paid-in capital     -       1,132,000  
Accumulated other comprehensive income/(loss)     (62,000 )     435,000  
Retained earnings     88,634,000       78,897,000  
Total stockholders' equity     88,584,000       80,476,000  
                 
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY   $ 117,326,000     $ 115,910,000  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

  35  

 

 

MEDIFAST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF INCOME

Years Ended December 31, 2015, 2014, and 2013

 

    2015     2014     2013  
                   
Revenue   $ 272,773,000     $ 285,285,000     $ 324,054,000  
Cost of sales     71,458,000       76,078,000       83,488,000  
Gross Profit     201,315,000       209,207,000       240,566,000  
                         
Selling, general, and administrative     172,631,000       178,961,000       202,156,000  
                         
Income from operations     28,684,000       30,246,000       38,410,000  
                         
Other income                        
Interest and dividend income, net     661,000       716,000       509,000  
Other income     326,000       731,000       124,000  
      987,000       1,447,000       633,000  
                         
Income from continuing operations before income taxes     29,671,000       31,693,000       39,043,000  
Provision for income taxes     10,104,000       10,664,000       11,908,000  
                         
Income from continuing operations     19,567,000       21,029,000       27,135,000  
Income (loss) from discontinued operations, net of tax     491,000       (7,848,000 )     (3,166,000 )
Net income   $ 20,058,000     $ 13,181,000     $ 23,969,000  
                         
Basic earnings per share                        
Earnings per share from continuing operations   $ 1.64     $ 1.66     $ 1.97  
Earnings (Loss) per share from discontinued operations   $ 0.04     $ (0.62 )   $ (0.23 )
Earnings per share   $ 1.68     $ 1.04     $ 1.74  
                         
Diluted earnings per share                        
Earnings per share from continuing operations   $ 1.62     $ 1.65     $ 1.96  
Earnings (Loss) per share from discontinued operations   $ 0.04     $ (0.62 )   $ (0.23 )
Earnings per share   $ 1.66     $ 1.03     $ 1.73  
                         
Weighted average shares outstanding -                        
 Basic     11,959,252       12,670,387       13,774,083  
 Diluted     12,070,730       12,778,277       13,817,693  
                         
Cash dividends declared per share   $ 0.25     $ -     $ -  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

  36  

 

 

MEDIFAST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

Years Ended December 31, 2015, 2014, and 2013

 

    2015     2014     2013  
                   
Net income   $ 20,058,000     $ 13,181,000     $ 23,969,000  
Other comprehensive income, net of tax                        
Change in foreign currency translation, net of tax     64,000       -       -  
Change in unrealized gains/losses on marketable securities:                        
Change in fair value of marketable securities, net of tax     (245,000 )     207,000       257,000  
Adjustment for net (gains)/losses realized and included in net income, net of tax     (316,000 )     (475,000 )     (107,000 )
Total change in unrealized (gains)/losses on marketable securities, net of tax     (561,000 )     (268,000 )     150,000  
                         
Other comprehensive income/(loss)     (497,000 )     (268,000 )     150,000  
                         
Comprehensive income   $ 19,561,000     $ 12,913,000     $ 24,119,000  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

  37  

 

 

MEDIFAST, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY

Years Ended December 31, 2015, 2014, and 2013

 

    Number of
 Shares
 Issued 		    Par Value
$0.001
 Amount 		    Additional Paid-
In Capital 		    Retained Earnings     Accumulated
 other
comprehensive
 income 		    Treasury Stock     Total  
Balance, December 31, 2012     15,525,955     $ 16,000     $ 40,191,000     $ 76,534,000     $ 553,000     $ (26,508,000 )   $ 90,786,000  
                                                         
Share-based compensation     16,163               3,209,000                               3,209,000  
Share-based compensation tax benefit                     383,000                               383,000  
Treasury stock purchases                                             (20,081,000 )     (20,081,000 )
Treasury stock retirement     (2,398,809 )     (3,000 )     (43,783,000 )     (2,803,000 )             46,589,000       -  
Net income                             23,969,000                       23,969,000  
Other comprehensive income                                     150,000               150,000  
                                                         
Balance, December 31, 2013     13,143,309       13,000       -       97,700,000       703,000       -     $ 98,416,000  
                                                         
Share-based compensation     387,107               3,918,000                               3,918,000  
Net shares repurchased for employee taxes     (37,634 )             (1,152,000 )                             (1,152,000 )
Share-based compensation tax benefit                     275,000                               275,000  
Treasury stock purchases                                             (33,894,000 )     (33,894,000 )
Treasury stock retirement     (1,127,092 )     (1,000 )     (1,909,000 )     (31,984,000 )             33,894,000       -  
Net income                             13,181,000                       13,181,000  
Other comprehensive loss                                     (268,000 )             (268,000 )
                                                         
Balance, December 31, 2014     12,365,690       12,000       1,132,000       78,897,000       435,000       -       80,476,000  
                                                         
Options exercised by executives and directors     1,666               44,000                               44,000  
Share-based compensation     51,305               3,081,000                               3,081,000  
Net shares repurchased for employee taxes     (40,368 )             (1,296,000 )                             (1,296,000 )
Share-based compensation tax benefit                     247,000                               247,000  
Cash dividends declared to stockholders                             (3,013,000 )                     (3,013,000 )
Treasury stock purchases                                             (10,516,000 )     (10,516,000 )
Treasury stock retirement     (364,341 )             (3,208,000 )     (7,308,000 )             10,516,000       -  
Net income                             20,058,000                       20,058,000  
Other comprehensive loss                                     (497,000 )             (497,000 )
                                                         
Balance, December 31, 2015     12,013,952       12,000       -       88,634,000       (62,000 )     -     $ 88,584,000  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

  38  

 

 

MEDIFAST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

Years Ended December 31, 2015, 2014 & 2013

 

    2015     2014     2013  
Cash flows from operating activities:                        
Net income   $ 20,058,000     $ 13,181,000     $ 23,969,000  
Income (loss) from discontinued operations, net of tax     491,000       (7,848,000 )     (3,166,000 )
Income from continuing operations     19,567,000       21,029,000       27,135,000  
Adjustments to reconcile net income to net cash provided by operating activities from continuing operations:                        
Depreciation and amortization     7,115,000       8,052,000       7,901,000  
Realized (gain) on investment securities, net     (458,000 )     (771,000 )     (74,000 )
Share-based compensation     3,081,000       3,918,000       3,209,000  
Deferred income taxes     (106,000 )     286,000       428,000  
(Gain)/loss on disposal of fixed assets     81,000       (29,000 )     392,000  
Changes in assets and liabilities which provided (used) cash:                        
Accounts receivable     17,000       (708,000 )     87,000  
Inventory     2,400,000       1,802,000       2,615,000  
Prepaid expenses and other current assets     (56,000 )     (349,000 )     204,000  
Other assets     292,000       (318,000 )     746,000  
Accounts payable and accrued expenses     (2,363,000 )     (376,000 )     (1,427,000 )
Income taxes     3,550,000       (5,198,000 )     972,000  
Net cash provided by operating activities- continuing operations     33,120,000       27,338,000       42,188,000  
Net cash provided by (used in) operating activities- discontinued operations     (3,709,000 )     (1,802,000 )     172,000  
Net cash provided by operating activities     29,411,000       25,536,000       42,360,000  
Cash Flow from Investing Activities:                        
Sale of investment securities     11,880,000       29,636,000       14,359,000  
Purchase of investment securities     (9,250,000 )     (26,080,000 )     (25,355,000 )
Purchase of property and equipment     (2,819,000 )     (7,024,000 )     (11,386,000 )
Net cash used in investing activities- continuing operations     (189,000 )     (3,468,000 )     (22,382,000 )
Net cash provided by (used in) investing activities- discontinued operations     -       950,000       (220,000 )
Net cash used in investing activities     (189,000 )     (2,518,000 )     (22,602,000 )
Cash Flow from Financing Activities:                        
Repayment of long-term debt and capital leases     (255,000 )     (222,000 )     (3,641,000 )
Decrease in note receivable     45,000       52,000       26,000  
Net shares repurchased for employee taxes     (1,296,000 )     (1,152,000 )     -  
Options exercised by executives and directors     44,000       -       -  
Excess tax benefits from share-based compensation     247,000       275,000       383,000  
Purchase of treasury stock     (10,516,000 )     (33,894,000 )     (20,081,000 )
Net cash used in financing activities- continuing operations     (11,731,000 )     (34,941,000 )     (23,313,000 )
Net cash used in financing activities- discontinued operations     -       -       -  
Net cash used in financing activities     (11,731,000 )     (34,941,000 )     (23,313,000 )
                         
Foreign currency impact     87,000       -       -  
                         
NET CHANGE IN CASH AND CASH EQUIVALENTS     17,578,000       (11,923,000 )     (3,555,000 )
Cash and cash equivalents - beginning of the period     24,459,000       36,382,000       39,937,000  
Cash and cash equivalents - end of period   $ 42,037,000     $ 24,459,000     $ 36,382,000  
                         
Supplemental disclosure of cash flow information:                        
Interest paid   $ 22,000     $ 131,000     $ 57,000  
Income taxes paid   $ 4,182,000     $ 12,721,000     $ 9,983,000  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

  39  

 

 

Medifast, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

For the Years Ended December 31, 2015, 2014 and 2013

 

1. Nature of the Business

 

Medifast, Inc. (the “Company” or “Medifast”) is a Delaware corporation, incorporated in 1989. The Company’s operations are primarily conducted through seven of its wholly owned subsidiaries, Jason Pharmaceuticals, Inc., Take Shape For Life, LLC, Jason Enterprises, Inc., Jason Properties, LLC, Medifast Franchise Systems, Medifast Nutrition, Inc. and Seven Crondall, LLC. The Company is engaged in the production, distribution, and sale of weight loss, weight management, and healthy living products and other consumable health and diet products. Medifast product lines include weight loss, weight management, and healthy living meal replacements, snacks, hydration products and vitamins. The Company has one modern, Food and Drug Administration (“FDA”)-approved manufacturing facility located in Owings Mills, Maryland.

 

These products are sold through various channels of distribution, including the internet, call center, independent health advisors, medical professionals, franchise weight loss clinics, and direct consumer marketing supported via the phone and internet. The processing, formulation, packaging, labeling and advertising of the Company’s products are subject to regulation by one or more federal agencies, including the FDA, the Federal Trade Commission (“FTC”), the Consumer Product Safety Commission, the United States Department of Agriculture, and the United States Environmental Protection Agency.

 

2. Summary of Significant Accounting Policies

 

Significant accounting policies followed in the preparation of the consolidated financial statements are as follows:

 

Principles of Consolidation - The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries, Jason Pharmaceuticals, Inc., Take Shape For Life, LLC, Seven Crondall Associates, LLC, Jason Properties, LLC, Medifast Franchise Systems, Inc., Medifast Nutrition, Inc. and Jason Enterprises, Inc. All inter-Company transactions and balances have been eliminated in consolidation.

 

Reclassification – Certain amounts reported for prior periods have been reclassified to be consistent with the current period presentation. No reclassification in the consolidated financial statements had a material impact on the presentation.

 

Use of Estimates – The preparation of financial statements in conformity with generally accepted accounting principles in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and reported amounts of revenue and expenses during the reporting period. Actual results could differ materially from those estimates.

 

Cash and Cash Equivalents - Cash and cash equivalents consist of cash on deposit in financial institutions, institutional money funds and other short-term investments with a maturity of 90 days or less at the time of purchase.

 

Concentration of Credit Risk – Our cash and cash equivalents and available-for-sale securities are maintained at several financial institutions, and the balances with these financial institutions often exceed the amount of insurance provided on such accounts by the Federal Deposit Insurance Corporation. The cash and cash equivalents generally are maintained with financial institutions with reputable credit, and therefore bear minimal credit risk. Historically, we have not experienced any losses due to such concentration of credit risk.

 

Fair Value of Financial Instruments - Our financial instruments include cash and cash equivalents, investment in available-for-sale securities, trade receivables and debt. The carrying amounts of cash and cash equivalents, and trade receivables approximate fair value due to their short maturities. The fair values of investment in available-for-sale securities are based on dealer quotes. The Company believes that its indebtedness approximates fair value based on current yields for debt instruments with similar terms.

 

Accounts Receivable and Allowance for Sales Returns and Doubtful Accounts - Accounts receivable are recorded net of reserves for sales returns and allowances, and net of provisions for doubtful accounts.

 

We review the reserves for customer returns at each reporting period and adjust them to reflect data available at that time. To estimate reserves for returns, we consider actual return rates in preceding periods. To the extent the estimate of returns changes, we will adjust the reserve, which will impact the amount of product sales revenue recognized in the period of the adjustment. Our estimates for returns have not differed materially from our actual returns. The provision for estimated returns as of December 31, 2015 and 2014 was $323,000 and $290,000, respectively.

 

Allowances for doubtful accounts are based primarily on an analysis of aged accounts receivable balances and the credit worthiness of our customers as determined by credit checks and analysis, as well as customer payment history. The allowance for doubtful accounts as of December 31, 2015 and 2014 was $94,000 and $64,000, respectively.

 

Inventory - Inventories consist principally of packaged meal replacements held in the Company’s warehouses. Inventory is stated at the lower of cost or market, utilizing the first-in, first-out method. The cost of finished goods includes the cost of raw materials, packaging supplies, direct and indirect labor and other indirect manufacturing costs. On a quarterly basis, management reviews inventory for unsalable or obsolete inventory.

 

Investment Securities – The Company’s investments consist of debt and equity securities classified as available-for-sale securities. Available-for-sale securities are stated at fair value, and unrealized holding gains and losses, net of the related deferred tax effect, are reported as a separate component of accumulated other comprehensive income in stockholders' equity. Interest and dividends on marketable debt and equity securities are recognized in income when declared. Realized gains and losses, including losses from declines in value of specific securities determined by management to be other-than-temporary, if any, are included in income.

 

  40  

 

 

Income Taxes – The benefit of a tax position is recognized in the financial statements in the period during which, based on all available evidence, management believes it is more-likely-than-not that the position will be sustained upon examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated with other positions. Tax positions that meet the more-likely-than-not recognition threshold are measured as the largest amount of tax benefit that is more than 50 percent likely of being realized upon settlement with the applicable taxing authority. The portion of the benefits associated with tax positions taken that exceeds the amount measured as described above is reflected as a liability for unrecognized tax benefits in the accompanying balance sheet along with any associated interest and penalties that would be payable to the taxing authorities upon examination.

 

We evaluated our tax positions and determined that we did not have any material uncertain tax positions. Our policy is to recognize interest and penalties accrued on uncertain tax positions as part of income tax expense. For the years ending December 31, 2015 and 2014, no material estimated interest or penalties were recognized for the uncertainty of certain tax positions. We file income tax returns in the United States, Canada and various states jurisdictions. We are currently under audit by the IRS for 2010, but do not anticipate it to have a significant impact on previously reported results as well as benefits realized under our current tax structure. Other than 2010, we are no longer subject to U.S. federal, state, and local income tax examinations by tax authorities for the years before 2012.

 

Deferred tax assets are recognized for deductible temporary differences and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment.

 

Advertising Costs - Advertising costs are expensed as incurred, except for the preparation, layout, design and production of advertising costs which are expensed when the advertisement is first used. Advertising expense for continuing operations, excluding broker fees, for the years ended December 31, 2015, 2014, and 2013, amounted to $15 million, $17 million, and $21 million, respectively.

 

Operating Leases - Medifast leases retail stores, distribution facilities, and office space under operating leases. Many of our lease agreements contain tenant improvement allowances, rent holidays, rent escalation clauses, and contingent rent provisions. The Company recognizes incentives and minimum rental expenses on a straight-line basis over the terms of the leases. We commence recording rent expense on the date of initial possession, which is generally when we enter the space and begin to make improvements to properties for our intended use. For tenant improvement allowances and rent holidays, we record a deferred rent liability on the consolidated balance sheets and amortize the deferred rent over the terms of the leases as reductions to rent expense on the consolidated statements of income.

 

For scheduled rent escalation clauses during the lease terms or for rental payments commencing at a date other than the date of initial occupancy, we record minimum rental expenses on a straight-line basis over the terms of the leases on the consolidated statements of income. Several leases provide for contingent rents, which are determined as a percentage of gross sales in excess of specified levels. We record a contingent rent liability on the consolidated balance sheets and the corresponding rent expense when we determine achieving the specified levels is probable.

 

Clinic Opening Costs - Clinic opening costs were expensed as incurred.

 

Clinic Closure Costs - Clinic closure costs are expensed and recognized as a liability at their fair value when incurred. One-time employee severance costs are expensed and recognized as a liability when the plan is finalized by management, approved and committed to by management, and communicated to the employee. Contractual costs that will continue to be incurred (operating leases) are recognized at the cease use date. The fair value of operating lease contracts is determined based on the present value of the remaining lease payments. Other costs associated with closing the clinic or relocating employees are expensed as incurred.

 

Property, Plant, and Equipment - Property, plant and equipment are stated at cost less accumulated depreciation and amortization. The Company computes depreciation and amortization using the straight-line method over the estimated useful lives of the assets acquired as follows:

 

Building and building improvements   10 - 35 years
Equipment and fixtures   3 - 15 years
Leasehold Improvements   Lease term
Vehicles   5 years

 

The depreciation life for leasehold improvements is the lesser of the estimated useful life of the addition or the term of the related lease.

 

Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds the fair value of the asset.

 

Revenue Recognition - Revenue is recognized net of discounts, rebates, promotional adjustments, price adjustments, and estimated returns and upon transfer of title and risk to the customer which occurs at shipping (F.O.B. terms). Upon shipment, the Company has no further performance obligations and collection is reasonably assured as the majority of sales are paid prior to shipping. Medifast Weight Control Centers program fees were recognized over the estimated service period.

 

Shipping and Handling Costs - Our shipping and handling costs for shipments of our product to our customers are included in cost of sales. All shipping and handling charges that are billed to customers are included in net revenue. All other shipping and handling costs are included in selling, general and administration expenses.

 

  41  

 

 

Earnings per Share - Basic earnings per share (“EPS”) computations are calculated utilizing the weighted average number of common shares outstanding during the periods presented. Diluted EPS is calculated utilizing the weighted average number of common shares outstanding adjusted for the effect of dilutive common stock equivalents.

 

The following table sets forth the computation of basic and diluted EPS for the fiscal years ended December 31:

 

    2015     2014     2013  
Numerator:                        
Income from continuing operations   $ 19,567,000     $ 21,029,000     $ 27,135,000  
Income (loss) from discontinued operations     491,000       (7,848,000 )     (3,166,000 )
Net income   $ 20,058,000     $ 13,181,000     $ 23,969,000  
                         
Denominator:                        
Weighted average shares of common stock outstanding     11,959,252       12,670,387       13,774,083  
Effect of dilutive common stock equivalents     111,478       107,890       43,610  
                         
Weighted average shares of common stock outstanding     12,070,730       12,778,277       13,817,693  
                         
EPS:                        
Basic earnings per share                        
Earnings per share from continuing operations   $ 1.64     $ 1.66     $ 1.97  
Earnings (loss) per share from discontinued operations   $ 0.04     $ (0.62 )   $ (0.23 )
Earnings per share   $ 1.68     $ 1.04     $ 1.74  
                         
Diluted earnings per share                        
Earnings per share from continuing operations   $ 1.62     $ 1.65     $ 1.96  
Earnings (loss) per share from discontinued operations   $ 0.04     $ (0.62 )   $ (0.23 )
Earnings per share   $ 1.66     $ 1.03     $ 1.73  

 

The calculation of diluted earnings per share excluded 69,375, 67,375 and 0 options outstanding for the years ended December 31, 2015, 2014, and 2013, respectively, that could potentially dilute base earnings per share in the future.

 

Share-Based Compensation - Share-based compensation, primarily restricted stock awards and options granted to employees and directors. Restricted stock awards are measured at the grant date, based on the calculated fair value of the award, and are recognized as an expense over the requisite service period. The fair value of the incentive stock options and non-qualified stock options is calculated using the Black-Scholes option pricing model as of the grant date and recognized over the service period. The Company issues new shares upon the exercise of stock options and granting of restricted stock awards.

 

Comprehensive Income - Other comprehensive income refers to revenues, expenses, gains and losses that are not included in net income but rather are recorded directly in stockholders’ equity. Comprehensive income consists of net income, unrealized gains and losses on available-for-sale securities, and foreign currency translation adjustments.

 

Recent Accounting Pronouncements

 

We have considered all new accounting pronouncements and have concluded that there are no new pronouncements that may have a material impact on our results of operations, financial condition, or cash flows, based on current information, except for:

 

ASU 2016-02, Leases (Topic 842) requires the rights and obligations of all leased assets with a term greater than 12 months to be presented on the balance sheet. The pronouncement is effective for fiscal years beginning after December 15, 2018. Management is current evaluating the effect that the provisions of ASU 2016-02 will have on the Company’s financial statements.

 

ASU 2016-01, Financial Instruments- Overall (Subtopic 825-10): Recognition and Measurement of Financial Assets and Financial Liabilities , most notably requires the changes in fair value of equity investments to be recognized in net income. The pronouncement also requires the use of the exit price notion, the separate presentation of financial assets and liabilities by measurement category and form of asset, and the separate presentation in other comprehensive income of changes in fair value resulting from a change in the instrument-specific credit risk. The pronouncement is effective for fiscal years beginning after December 15, 2017. Management is currently evaluating the effect that the provisions of ASU 2016-01 will have on the Company’s financial statements.

 

ASU 2015-17, Income Taxes (Topic 740): Balance Sheet Classification of Deferred Taxes requires the Company to classify all deferred tax assets and deferred tax liabilities as noncurrent. The pronouncement is effective for fiscal years beginning after December 15, 2016. Management is currently evaluating the effect that the provisions of ASU 2015-17 will have on the Company’s financial statements.

 

  42  

 

 

ASU 2015-11, Inventory (Topic 330): Simplifying the Measurement of Inventory , requires the Company to recognize inventory at the lower of cost and net realizable value. Net realizable value is defined as the estimated selling price in the ordinary course of business less costs of completion, disposal, and transportation. The pronouncement is effective for fiscal years beginning after December 31, 2016. Management is currently evaluating the effect that the provisions of ASU 2015-11 will have on the Company’s financial statements.

 

ASU 2015-09, Revenue from Contracts with Customers (Topic 606) , requires the Company to recognize revenue for the transfer of goods or services to customers for the amount the Company expects to be entitled to in exchange for those goods or services. The Company will be required to identify the contract, identify the relevant performance obligations, determine the transaction price, allocate the transaction price to the performance obligations in the contract, and recognize the revenue when the entity satisfies a performance obligation. The provisions of this ASU are effective for interim and annual periods beginning after December 15, 2017. Management is currently evaluating the effect that the provisions of ASU 2015-09 will have on the Company’s financial statements.

 

3. Financial Instruments

 

Certain financial assets and liabilities are accounted for at fair value, which is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The following fair value hierarchy prioritizes the inputs used to measure fair value:

 

Level 1 – Quoted prices are available in active markets for identical assets or liabilities as of the reporting date. Active markets are those in which transactions for the asset or liability occur in sufficient frequency and volume to provide pricing information on an ongoing basis.

 

Level 2 – Pricing inputs are other than quoted prices in active markets included in Level 1, which are either directly or indirectly observable as of the reporting date. Level 2 includes those financial instruments that are valued using models or other valuation methodologies.

 

Level 3 – Pricing inputs include significant inputs that are generally less observable from objective sources. These inputs may be used with internally developed methodologies that result in management’s best estimate of fair value from the perspective of a market participant.

 

  43  

 

 

The following table represents cash and the available-for-sale securities adjusted cost, gross unrealized gains, gross unrealized losses and fair value by significant investment category recorded as cash and cash equivalents or investment securities as of December 31, 2015 and 2014:

 

    December 31, 2015  
    Cost     Unrealized
Gains 		    Unrealized
Losses 		    Accrued
Interest 		    Estimated
Fair Value 		    Cash & Cash
Equivalents 		    Investment
Securities 		 
                                           
Cash   $ 38,276,000     $ -     $ -     $ -     $ 38,276,000     $ 38,276,000     $ -  
                                                         
Level 1:                                                        
Money Market Accounts     3,761,000       -       -       -       3,761,000       3,761,000       -  
Mutual Funds     9,654,000       37,000       (444,000 )     -       9,247,000       -       9,247,000  
Corporate Equity Securities     1,332,000       246,000       (76,000 )     -       1,502,000       -       1,502,000  
Government & Agency Securities     5,425,000       25,000       (19,000 )     17,000       5,448,000       -       5,448,000  
      20,172,000       308,000       (539,000 )     17,000       19,958,000       3,761,000       16,197,000  
                                                         
Level 2:                                                        
Municipal Bonds     2,735,000       42,000       (3,000 )     20,000       2,794,000       -       2,794,000  
Corporate Bonds     6,054,000       22,000       (41,000 )     46,000       6,081,000       -       6,081,000  
      8,789,000       64,000       (44,000 )     66,000       8,875,000       -       8,875,000  
                                                         
Total   $ 67,237,000     $ 372,000     $ (583,000 )   $ 83,000     $ 67,109,000     $ 42,037,000     $ 25,072,000  

 

    December 31, 2014  
    Cost     Unrealized
Gains 		    Unrealized
Losses 		    Accrued
Interest 		    Estimated
Fair Value 		    Cash & Cash
Equivalents 		    Investment
Securities 		 
                                           
Cash   $ 23,894,000     $ -     $ -     $ -     $ 23,894,000     $ 23,894,000     $ -  
                                                         
Level 1:                                                        
Money Market Accounts     565,000       -       -       -       565,000       565,000       -  
Mutual Funds     10,733,000       63,000       (129,000 )     -       10,667,000       -       10,667,000  
Corporate Equity Securities     3,408,000       695,000       (31,000 )     -       4,072,000       -       4,072,000  
Government & Agency Securities     4,559,000       49,000       (5,000 )     15,000       4,618,000       -       4,618,000  
      19,265,000       807,000       (165,000 )     15,000       19,922,000       565,000       19,357,000  
                                                         
Level 2:                                                        
Municipal Bonds     3,652,000       78,000       (7,000 )     28,000       3,751,000       -       3,751,000  
Corporate Bonds     5,022,000       29,000       (12,000 )     38,000       5,077,000       -       5,077,000  
      8,674,000       107,000       (19,000 )     66,000       8,828,000       -       8,828,000  
                                                         
Total   $ 51,833,000     $ 914,000     $ (184,000 )   $ 81,000     $ 52,644,000     $ 24,459,000     $ 28,185,000  

 

The Company had realized gains of $458,000, $771,000 and $74,000 for the years ended December 31, 2015, 2014 and 2013, respectively. As of December 31, 2014 and 2015, gross unrealized losses related to individual securities that had been in a continuous loss position for 12 months or longer were not significant. The maturities of the Company’s investment securities generally range from 1 to 30 years for corporate bonds, 1 to 5 years for municipal bonds, and 1 to 7 years for government and agency securities.

 

  44  

 

 

4. INVENTORY

 

Inventories consisted of the following as of:

 

    December 31, 2015     December 31, 2014  
Raw Materials   $ 3,666,000     $ 4,410,000  
Packaging     788,000       920,000  
Non-food Finished Goods     635,000       1,108,000  
Finished Goods     8,545,000       9,689,000  
Reserve for Obsolete Inventory     (299,000 )     (392,000 )
    $ 13,335,000     $ 15,735,000  

 

5. PROPERTY, PLANT AND EQUIPMENT

 

Property, plant, and equipment consisted of the following as of:

 

    December 31, 2015     December 31, 2014  
Land   $ 650,000     $ 650,000  
Building and leasehold improvements     13,122,000       13,346,000  
Equipment and fixtures     61,573,000       59,501,000  
Vehicle     149,000       149,000  
    $ 75,494,000     $ 73,646,000  
Less accumulated depreciation and amortization     46,465,000       40,169,000  
Property, plant and equipment- net   $ 29,029,000     $ 33,477,000  

 

Depreciation and amortization expense for continuing operations for the years ended December 31, 2015, 2014 and 2013 was $7,115,000, $8,052,000, and $7,810,000, respectively. Depreciation and amortization expense for discontinued operations related to the Medifast Corporate Weight Control Centers for the years ended December 31, 2015, 2014 and 2013 was $0, $1,699,000, and $3,144,000, respectively. As a result of the sale and closure of the Medifast Weight Control Centers, the Company incurred an asset impairment loss of $3.3 million in 2014 that is included in discontinued operations.

 

6. ACCOUNTS PAYABLE AND ACCRUED EXPENSES

 

 

    December 31, 2015     December 31, 2014  
Trade payables   $ 11,264,000     $ 12,178,000  
Sales commissions payable     4,245,000       3,890,000  
Accrued payroll and related taxes     3,440,000       3,000,000  
Dividends payable     3,013,000       -  
Sales tax payable     542,000       806,000  
Accrued loan guarantee     -       1,980,000  
    $ 22,504,000     $ 21,854,000  

 

7. LEASES

 

Operating and Capital Leases:

 

As of December 31, 2015, the Company leases office space for corporate offices, a distribution facility in Texas, a raw materials warehouse in Maryland, as well as 41 leases for previously corporate-operated Medifast Weight Control Centers under lease terms ranging from five to ten years. The 41 leases include 3 Centers closed in December 2013, 7 Centers that were closed in December 2014, and 31 leases for Centers that were sold to franchise partners during 2014 and entered into sublease agreements with the franchisees. The Company accrued for the remaining lease obligations net of any sublease income in 2014, see Note 12 for exit activity and clinic obligations. Monthly payments under the Medifast Weight Control Centers leases range in price from $1,800 to $5,000. The Company is additionally required to pay property taxes, utilities, insurance and other costs relating to the leased facilities.

 

  45  

 

 

The Company leases large commercial printers for our printing operation that supports our sales channels and network equipment for information technology that are accounted for as capital leases. The leases extend through December 2016.

 

The following table summarizes our future minimum rental and lease payments required under non-cancelable original lease terms in excess of one year as of December 31, 2015:

 

 

    Operating Leases     Capital Leases  
2016   $ 2,829,000     $ 225,000  
2017     1,758,000       -  
2018     355,000       -  
2019     31,000       -  
Total minimum lease payments   $ 4,973,000     $ 225,000  
Less amount representing interest             6,000  
Present value of minimum lease payments (current)           $ 219,000  
                 
Current portion             219,000  
Long-term portion           $ -  

 

Total minimum lease payments have not been reduced by minimum sublease rent income of approximately $2.0 million due under future non-cancelable subleases.

 

The following is a summary of the Company’s rent expense for the years ended December 31, 2015, 2014 and 2013:

 

    2015     2014     2013  
Continuing Operations     1,506,000       1,460,000       1,400,000  
Discontinued Operations     (1,002,000 )     7,189,000       5,233,000  
    $ 504,000     $ 8,649,000     $ 6,633,000  

 

For the period ended December 31, 2015, the positive impact to rent expense is due to lease termination agreements that resulted in the reversal of rent obligations estimates that were expensed in 2014. For the periods ended December 31, 2014 and 2013, the discontinued operations rent expense includes an accrual of $4.4 million and $1.1 million, respectively, for continuing obligations for operating leases related to centers closed during the periods.

 

Equipment lease expense for continuing operations for the years ended December 31, 2015, 2014, and 2013 was $1.0 million, $1.2 million, and $1.4 million, respectively.

 

8. CONTINGENCIES

 

The Company has entered into guarantee agreements with key franchisee partners in order to support them obtaining additional funding to expand their business into new markets. All of the loans associated with these agreements have been paid in full and the Company incurred a charge of $2 million in 2014 to fulfill its guarantee obligation on one of the loans. The guarantee with Team Wellness, Inc. provided financial coverage for a $1.0 million loan and a $1.0 million line of credit. The franchisee associated with these loans failed to pay the monthly obligations and the Company paid off the loans in April 2015, which was fully accrued and expensed in the amount of $2.0 million as of December 31, 2014. The Company was a secondary guarantor on the loan and line of credit and has pursued personal recourse against the franchise owner.

 

  46  

 

 

9. INCOME TAXES

 

The components of the income tax expense from continuing operations are as follows:

 

    2015     2014     2013  
Current                        
Federal   $ 9,814,000     $ 10,282,000     $ 11,682,000  
State     396,000       96,000       (202,000 )
Total Current     10,210,000       10,378,000       11,480,000  
                         
Deferred                        
Federal     (125,000 )     176,000       365,000  
State     39,000       206,000       63,000  
Foreign     (20,000 )     (96,000 )     -  
Total Deferred     (106,000 )     286,000       428,000  
                         
Total Income Tax Expense from Continuing Operations   $ 10,104,000     $ 10,664,000     $ 11,908,000  

 

The total tax provision for the years ended December 31, 2015, 2014, and 2013 was $9.9 million, $4.9 million, $10.0 million, respectively. Those amounts have been allocated to the following financial statement items:

 

    2015     2014     2013  
                   
Income from continuing operations   $ 10,104,000     $ 10,664,000     $ 11,908,000  
Income/(loss) from discontinued operations     387,000       (5,302,000 )     (1,690,000 )
Stockholders' equity, unrealized gain (loss) on investment securities & foreign currency     (357,000 )     (182,000 )     143,000  
Additional paid in capital, share-based compensation tax benefit     (247,000 )     (275,000 )     (383,000 )
                         
Total Income Tax Expense   $ 9,887,000     $ 4,905,000     $ 9,978,000  

 

Deferred tax assets (liabilities) consisted of the following at December 31,

 

    2015     2014     2013  
                   
Reserves on inventory and sales   $ 199,000     $ 291,000     $ 332,000  
Credit and loss carryforwards     735,000       699,000       413,000  
Stock compensation     1,149,000       1,283,000       896,000  
Accrued expenses and deferred costs     1,068,000       3,170,000       1,260,000  
Inventory capitalization     49,000       142,000       337,000  
Sales tax accrual     -       8,000       337,000  
Unrealized gain/loss on investments     85,000       -       -  
Total deferred tax assets     3,285,000       5,593,000       3,575,000  
                         
Unrealized gain/loss on investments     -       (294,000 )     (476,000 )
Prepaid expenses     (755,000 )     (779,000 )     (710,000 )
Depreciation     (6,189,000 )     (6,285,000 )     (7,091,000 )
Foreign currency     (23,000 )     -       -  
Total deferred tax liabilities     (6,967,000 )     (7,358,000 )     (8,277,000 )
                         
Net deferred tax liabilities   $ (3,682,000 )   $ (1,765,000 )   $ (4,702,000 )

 

The differences between the United States federal statutory tax rate and the Company's effective tax rate are as follows:

 

    2015     2014     2013  
Statutory federal tax   $ 10,381,000       35.0 %   $ 11,093,000       35.0 %   $ 13,665,000       35.0 %
State income taxes, net of federal benefit     414,000       1.4 %     314,000       1.0 %     393,000       1.0 %
Foreign Taxes     15,000       0.1 %     73,000       0.2 %     -       0.0 %
Domestic manufacturer deduction     (824,000 )     -2.8 %     (811,000 )     -2.6 %     (979,000 )     -2.5 %
Other permanent differences     4,000       0.0 %     200,000       0.6 %     173,000       0.4 %
Research and development and jobs credits     (247,000 )     -0.8 %     (203,000 )     -0.6 %     (459,000 )     -1.2 %
Other state income tax benefits     114,000       0.4 %     (113,000 )     -0.4 %     (707,000 )     -1.8 %
Other     247,000       0.8 %     111,000       0.4 %     (178,000 )     -0.4 %
    $ 10,104,000       34.1 %   $ 10,664,000       33.6 %   $ 11,908,000       30.5 %

 

The 2015, 2014 and 2013 effective tax rates were impacted by the Company’s extensive state income tax planning.  This planning includes taking advantage of Maryland’s apportionment methodology.  As a manufacturing entity based in Maryland, the Company utilizes the single sales factor apportionment method in addition to claiming new state jobs credits and research & development credits.  In 2013 the Company benefited from research and development credits effective January 1, 2013, applicable retroactively to 2012 activity. In 2014 the Company benefited from research and development credits effective January 1, 2014 in addition to filing an amended federal return to claim 2010 research and development credits due to changes in Federal regulations.

 

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The Company has separate company state net operating loss carry forwards totaling $10.9 million start expiring in 2031.  Maryland state credits carry forwards totaling $201,000 will begin to expire in 2018.

 

10. SHARE-BASED COMPENSATION

 

Stock Options:

 

The Company has issued non-qualified and incentive stock options to employees and nonemployee directors. The fair value of these options are estimated on the date of grant using the Black-Scholes option pricing model, which requires estimates of the expected term of the option, the expected volatility of the price of the Company’s common stock, dividend yield and the risk-free interest rate. Options outstanding as of December 31, 2015 generally vest over a period of three years with an expiration term of ten years. The exercise price of these options ranges from $24.26 to $31.55. The expected volatility is based on the historical volatility of the Company’s common stock over the period of time equivalent to the expected term for each award. Due to the Company’s lack of option exercise history, the expected term is calculated using the simplified method defined as the midpoint between the vesting period and the contractual term of each award. The risk free interest rate is based on the U.S. Treasury yield curve in effect on the date of grant which most closely corresponds to the expected term of the option. All of the options were issued prior to the Company declaring its first dividend in December 2015; and therefore, a dividend yield is not utilized in the calculation. The weighted average input assumptions used and resulting fair values were as follows:

 

    2015     2014  
Expected life (in years)     6       6  
Risk-free interest rate     1.71 %     1.61 %
Expected volatility     50.91 %     63.15 %
Dividend yield     -       -  

 

The following table summarizes the stock option activity:

 

    Shares     Weighted-Average
Exercise Price 		    Weighted-Average
Remaining Contractual
 Life (Yrs) 		    Aggregate
Intrinsic
Value 		 
Outstanding at December 31, 2014     67,375     $ 26.05                  
 Granted     66,000       30.99                  
 Exercised     (1,666 )     26.52                  
 Forfeited     (33,336 )     29.54                  
Outstanding at December 31, 2015     98,373     $ 28.17       8.52       256,175  
Exerciseable at December 31, 2015     34,615     $ 26.27       7.92       145,052  

 

The weighted-average grant date fair value of options granted was $15.24. The unrecognized compensation expense calculated under the fair value method for shares expected to vest as of December 31, 2015 was approximately $0.6 million and is expected to be recognized over a weighted average period of 1.9 years. The Company received $44,000 in cash proceeds from the exercise of stock options during 2015. No options were exercised in 2014 or 2013.

 

Restricted Stock:

 

The Company has issued restricted stock to employees and nonemployee directors generally with terms ranging up to seven years. The fair value is equal to the market price of the Company’s common stock on the date of grant. Expense for restricted stock is amortized ratably over the vesting period. The following table summarizes the restricted stock activity:

 

  48  

 

 

 

    Shares     Weighted-Average
Grant Date Fair Value 		 
Unvested at December 31, 2014     333,676     $ 25.31  
Granted     58,685       31.39  
Vested     (124,053 )     25.68  
Forfeited     (4,600 )     31.55  
Unvested at December 31, 2015     263,708     $ 26.38  

 

The total share-based compensation expense charged against income during the years ended December 31, 2015, 2014, and 2013 were $3,081,000, $3,918,000, and $3,209,000, respectively. Included in share-based compensation expense for 2015 is $734,000 for 46,530 shares of performance awards to be issued to certain key employees based on achieving 2015 financial plan that will vest on December 31, 2016.  The Company intends to issue additional performance awards in 2016 to certain key employees if certain 2016 financial plans are met.  During 2015, the Company issued 12,155 shares to members of the Board of Directors including 4,600 shares that were later forfeited. The total income tax benefit recognized in the consolidated statement of income for these restricted stock awards was approximately $1,012,000, $1,398,000 and $1,123,000 for the years ending December 31, 2015, 2014, and 2013, respectively. The tax benefit recognized in additional paid-in capital upon vesting of restricted stock awards and exercise of stock options was approximately $247,000, $275,000 and $383,000 for the years ending December 31, 2015, 2014, 2013, respectively. There was approximately $4.6 million of total unrecognized compensation cost related to restricted stock awards as of December 31, 2015. The cost is expected to be recognized over a weighted-average period of approximately 2.2 years.

 

11. BUSINESS SEGMENTS

 

Operating segments are components of an enterprise about which separate financial information is available that is regularly reviewed by the chief operating decision maker about how to allocate resources and in assessing performance. The consolidated operating profit of the Company is reviewed by the chief operating decision maker as a single segment and sales are reviewed at the channel level.

 

The following table represents sales by channel for the years ended:

 

    December 31, 2015     December 31, 2014     December 31, 2013  
                   
Take Shape For Life   $ 202,218,000     $ 206,657,000     $ 228,729,000  
Medifast Direct     48,658,000       57,159,000       75,521,000  
Medifast Weight Control Centers- Franchise     17,072,000       15,424,000       15,336,000  
Medifast Wholesale     4,825,000       6,045,000       4,468,000  
Net Revenue   $ 272,773,000     $ 285,285,000     $ 324,054,000  

 

12. DISCONTINUED OPERATIONS, EXIT ACTIVITIES, AND CLINIC OBLIGATIONS

 

In 2014, the Company exited the MWCC corporate center model by selling 41 centers to existing franchise partners (24 centers were sold in June 2014 and the remaining 17 centers were sold in December 2014) and closing the remaining 34 corporate centers. In accordance with ASU 2014-08, Presentation of Financial Statements (Topic 205) and Property Plant, and Equipment (Topic 360): Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity the assets, liabilities, operating results, and cash flows of the MWCC corporate center channel have been presented separately as discontinued operations in the Consolidated Financial Statements for all periods presented.

 

The following is a summary of the Company’s operating results for discontinued operations for the years ended:

 

    December 31, 2015     December 31, 2014     December 31, 2013  
Revenue   $ -     $ 22,509,000     $ 32,832,000  
Income/(loss) before income taxes from discontinued operations     878,000       (13,150,000 )     (4,856,000 )
Income tax/(benefit) provision     387,000       (5,302,000 )     (1,690,000 )
Income/(loss) from discontinued operations, net of tax   $ 491,000     $ (7,848,000 )   $ (3,166,000 )

 

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The following table presents the aggregate carrying amounts of the major classes of assets and liabilities included in discontinued operations as of:

 

    December 31, 2015  
ASSETS        
Current assets:        
Receivables, net   $ 353,000  
Total current assets     353,000  
         
Other assets     19,000  
         
Total assets   $ 372,000  
         
LIABILITIES        
Current liabilities:        
Accounts payable and accrued expenses     841,000  
Total current liabilities   $ 841,000  
         
Long-term lease obligations     288,000  
         
Total liabilities   $ 1,129,000  

 

The following table summarizes the exit obligations primarily consisting of closed clinic lease obligations, severance accruals, and customer refunds incurred for the years ended December 31, 2014 and 2015:

 

Ending accrued balance as of December 31, 2013   $ 1,361,000  
Charges incurred during the period     6,006,000  
Payments during the period     (833,000 )
Ending accrued balance as of December 31, 2014   $ 6,534,000  
Adjustments recorded during the period (1)     (1,483,000 )
Payments during the period     (3,922,000 )
Ending accrued balance as of December 31, 2015   $ 1,129,000  

 

(1)- The adjustments to the accrual recorded in 2015 relate primarily to favorable termination agreements reached with landlords of closed Corporate Medifast Weight Control Centers.

 

These charges were recorded in the balance sheet as of December 31, 2015 as follows:

 

Total current liabilities of discontinued operations   $ 841,000  
Total long-term liabilities of discontinued operations     288,000  
Ending accrued balance as of December 31, 2015   $ 1,129,000  

 

13. SUBSEQUENT EVENTS

 

On March 9, 2016, the Company’s board of directors declared a $0.25 cash dividend to its stockholders, valued at $3.0 million. The dividend is payable on May 10, 2016 to stockholders of record as of the close of business on March 21, 2016.

 

  50  

 

 

INDEX TO EXHIBITS

 

No.

 
3.1 Restated and Amended Certificate of Incorporation of Medifast, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K (File No. 001-31573) filed February 27, 2015).
   
3.2 Amended and Restated Bylaws of Medifast, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-31573) filed on April 6, 2015).
   
10.1 Amended and Restated 2012 Share Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-31573) filed on June 20, 2014).*
   
10.2 Form of Restricted Share Award Agreement (filed herewith).*
   
10.3 Form of Incentive Stock Option Agreement (incorporated by reference to Exhibit 99.1 of the Company’s Current Report on Form 8-K (File No. 001-31573) filed on February 4, 2014). *
   
10.4 Form of Non-Qualified Stock Option Agreement (filed herewith). *
   
10.5 Form of Performance-Based Deferred Share Award Agreement (filed herewith). *
   
10.6  Lease relating to the Company's Owings Mills, Maryland facility incorporated by reference to the Registration Statement on Form S-4 of the Company (File No. 33-81524).
   
10.7 Cooperation Agreement dated April 3, 2015, by and among the Company, Engaged Capital LLC, and the persons set forth on the signature pages thereto (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-31573) filed on April 6, 2015.
   
21.1  Subsidiaries of Medifast, Inc. (filed herewith).
   
23.1 Consent of RSM US LLP (filed herewith).
   
31.1  Certification of Chief Executive Officer pursuant to Item 601(b)(31) of Regulation S-K, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith).
   
31.2 Certification of Chief Financial Officer pursuant to Item 601(b)(31) of Regulation S-K, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith).
   
32 Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes- Oxley Act of 2002 (furnished herewith).
   
101 The following financial statements from Medifast, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2015, filed March 15, 2016, formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Balance Sheets, (ii) Consolidated Statements of Income, (iii) Consolidated Statements of Comprehensive Income, (iv) Consolidated Statements of Changes in Stockholders’ Equity (v) Consolidated Statements of Cash Flows, and (vi) Notes to the Consolidated Financial Statements (filed herewith).

 

* Indicates a management contract or compensatory plan.

 

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SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

MEDIFAST, INC.

(Registrant)

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

MEDIFAST, INC.

(Registrant)

 

/s/ MICHAEL C. MACDONALD  
   
Michael C. MacDonald  
Chief Executive Officer  
(Principal Executive Officer)  
Dated: March 15, 2016  
   
/s/ TIMOTHY G. ROBINSON  
   
Timothy G. Robison  
Chief Financial Officer  
(Principal Financial and Accounting Officer)  
Dated: March 15, 2016  

 

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Pursuant to the requirements of the Securities Exchange Act of 1934, the following persons on behalf of the Registrant and in the capacities and on the dates indicated have signed this Report below.

 

Name Title

Date

     
/s/ JEFFREY J. BROWN Lead Director March 15, 2016
     
Jeffrey J. Brown    
     
/s/ KEVIN G. BYRNES Director March 15, 2016
     
Kevin G. Byrnes    
     
/s/ CHARLES P. CONNOLLY Director March 15, 2016
     
Charles P. Connolly    
     
/s/ CONSTANCE J. HALLQUIST Director March 15, 2016
     
Constance J. Hallquist    
     
/s/ JORGENE K. HARTWIG Director March 15, 2016
     
Jorgene K. Hartwig    
     
/s/ JOSEPH P. KELLEMAN Vice President of Finance March 15, 2016
   
Joseph P. Kelleman    
     
/s/ MICHAEL C. MACDONALD Chairman and Chief Executive Officer March 15, 2016
   
Michael C. Macdonald    
     
/s/ CARL E. SASSANO Director March 15, 2016
     
Carl. E. Sassano    
     
/s/ SCOTT SCHLACKMAN Director March 15, 2016
     
Scott Schlackman    
     
/s/ GLENN W. WELLING Director March 15, 2016
     
Glenn W. Welling    

 

  53  

 

 

Exhibit 10.2

 

MEDIFAST, INC.

 

2012 SHARE INCENTIVE PLAN

 

RESTRICTED SHARE AWARD AGREEMENT

 

Medifast, Inc. (the “ Company ”) has determined to grant to you an award of restricted shares of common stock (“ Award ”) of the Company under the Medifast, Inc. 2012 Share Incentive Plan (the “ Plan ”). The terms of the grant are set forth in the attached Restricted Share Award Agreement (the “ Agreement ”). The following provides a summary of the key terms of the Agreement; however, you should read the entire Agreement along with the terms of the Plan, to fully understand the Agreement.

 

SUMMARY OF RESTRICTED SHARE AWARD AGREEMENT

 

Participant: [___________________]

 

Date of Grant: [________],[______]
   
Vesting Schedule: [______]
   
Total Number of Restricted Shares Granted: [______]

 

The above is a summary description of certain provisions of the Agreement and is not intended to be complete. In the event any aspect of this summary conflicts with the terms of the Agreement, the terms of the Agreement shall govern.

 

 

 

 

RESTRICTED SHARE AWARD AGREEMENT

 

This RESTRICTED SHARE AWARD AGREEMENT (the “ Agreement ”), dated as of [____________],[______] (the “ Date of Grant ”) is delivered by Medifast, Inc. (the “ Company ”), to [____________] (the “ Participant ”).

 

The Company has determined to provide the Participant a restricted share award under the Medifast, Inc. 2012 Share Incentive Plan (the “ Plan ”) and in accordance with the terms and conditions set forth in this Agreement. Capitalized terms that are used but not defined herein shall have the respective meanings accorded to such terms in the Plan.

 

The Company and Participant, intending to be legally bound hereby, agree as follows:

 

1.           Grant of Restricted Share Award .

 

The Company grants to Participant [ _____ ] shares of common stock of the Company, subject to the restrictions set forth below and in the Plan (the “ Award ”).

 

2.           Vesting, Dividends and Non-assignability of Award .

 

The shares shall become vested, according to the following vesting schedule, if the Participant continues to be employed by, or provide service to, the Company from the Date of Grant until the applicable vesting date:

 

Applicable Vesting Date % of Vested Shares
   
[                                    ] [                                    ]

 

The vesting of the shares shall be cumulative, but shall not exceed 100% of the shares. If the foregoing schedule would produce fractional shares, the portion of the shares that vests shall be rounded down to the nearest whole share.

 

Unless otherwise provided in a Company-sponsored plan, policy or arrangement, or any agreement to which the Company is a party, the Participant shall forfeit any unvested portion of the Award in the event the Participant ceases to be employed by, or provide service to, the Company prior to the Vesting Date.

 

The Participant will be entitled to exercise voting rights with respect to the unvested shares held under this Agreement.

 

 

 

 

Dividends paid on the shares shall be either paid at the Vesting Date in the form the dividends are paid to other shareholders, in cash, or in unrestricted shares having a Fair Market Value equal to the amount of such dividends, or subject to the terms of Section 409A of the Code, the payment of such dividends shall be deferred and/or the amount or value thereof automatically reinvested in additional restricted shares, other Awards, or other investment vehicles, as the Company shall determine or permit the Participant to elect. Shares distributed in connection with a share split or share dividend, and other property distributed as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the shares with respect to which such shares or other property are distributed.

 

The Award may not be assigned, transferred, hypothecated, or encumbered, in whole or in part, either directly or by operation of law or otherwise, including, but not limited to, by execution, levy, garnishment, attachment, pledge, bankruptcy, or in any other manner, except transfer by will or by the laws of descent and distribution. All rights with respect to the Award shall be exercisable during the Participant’s lifetime only by the Participant or the Participant’s guardian or legal representative.

 

3.           Dividend Equivalents .

 

On each dividend payment date for each cash dividend on the Shares, the Company will credit the Participant with dividend equivalents in cash (the “ Cash Dividends ”). The Cash Dividends shall be subject to the same vesting requirements applicable to the Restricted Shares in respect of which they were credited and shall be settled in accordance with, and at the time of, settlement of the vested Restricted Shares to which they are related. Cash Dividends applicable to Restricted Shares that are subsequently forfeited shall be forfeited. If the Participant’s vested Restricted Shares have been settled after the record date but prior to the dividend payment date, any Cash Dividends that would be credited pursuant to this Section 3 shall be settled on or as soon as practicable after the dividend payment date.

 

4.           Issuance of Certificates .

 

(a)          Stock certificates representing the Award may be issued by the Company and held in escrow by the Company until the Award vests, or the Company may hold non-certificated shares until the Award vests.

 

(b)          When the Participant obtains a vested right to shares from the Award, a certificate representing the vested shares shall be issued to the Participant, free of the restrictions under Section 2 of this Agreement.

 

(c)          The obligation of the Company to deliver shares upon the vesting of the Award shall be subject to all applicable laws, rules, and regulations and such approvals by governmental agencies as may be deemed appropriately to comply with relevant securities laws and regulations.

 

5.           Change in Control .

 

The provisions of the Plan applicable to a Change in Control or other corporate transaction (as described in Sections 8 and 9 of the Plan) shall apply to the Award.

 

  2  

 

 

6.           Withholding .

 

The Participant shall be required to pay to the Company, or make other arrangements satisfactory to the Company to provide for the payment of, any federal, state, local or other taxes that the Company is required to withhold with respect to the grant or vesting of the Award. Subject to Committee approval, the Participant may elect to satisfy any tax withholding obligation of the Company with respect to the Award by having shares withheld up to an amount that does not exceed the minimum applicable withholding tax rate for federal (including FICA), state, local and other tax liabilities.

 

6.           Miscellaneous .

 

(a)           No Right to Employment . The grant of the Award shall not be construed as giving the Participant the right to be retained by or in the employ of the Company or any other employment right.

 

(b)           Award Subject to Plan . By entering into this Agreement the Participant agrees and acknowledges that the Award is subject to the Plan. The terms and provisions of the Plan, as they may be amended from time to time, are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.

 

(c)           Committee Authority . By entering into this Agreement the Participant agrees and acknowledges that all decisions and determinations of the Committee shall be final and binding on the Participant, his or her beneficiaries and any other person having or claiming an interest in the Award.

 

(d)           Severability . If any provision of this Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify this Agreement or the Award under any applicable law, such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of this Agreement and the grant of the Award hereunder, such provision shall be stricken as to such jurisdiction and the remainder of this Agreement and the award shall remain in full force and effect).

 

(e)           Notices . Any notice to be given to Company under the terms of this Agreement shall be addressed to the Company, at the attention of the Committee, at its principal place of business, and any notice to be given to Participant may be sent to Participant’s address as it appears in the payroll records of the Company, or at such other addresses as either party may designate in writing to the other.

 

(f)           Governing Law . The validity, construction, interpretation and effect of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof

 

(g)           Interpretation . The Participant accepts the Award subject to all the terms and provisions of this Agreement and the terms and conditions of the Plan.

 

(h)           Headings . Headings are given to the paragraphs and subparagraphs of this Agreement solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Agreement or any provision thereof.

 

  3  

 

 

(i)           Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Facsimile or other electronic transmission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

 

(j)           Complete Agreement . Except as otherwise provided for herein, this Agreement and those agreements and documents expressly referred to herein embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

 

[Signature Page Follows]

 

  4  

 

 

IN WITNESS WHEREOF , the Company and Participant have executed this Agreement as of the grant date shown above.

 

    Medifast, Inc.
     
     
    By:  
    Name:  
    Title:  
     
    GRANTEE:
     
     
    Name:  

 

( Signature Page to Restricted Share Award Agreement )

 

 

 

Exhibit 10.4

 

MEDIFAST, INC.

 

2012 SHARE INCENTIVE PLAN

 

NON-QUALIFIED STOCK OPTION

 

Medifast, Inc. (the “ Company ”) has granted you a Non-Qualified Stock Option (the “ Option ”) under the Medifast, Inc. 2012 Share Incentive Plan (the “ Plan ”). The terms of the grant are set forth in the Non-Qualified Stock Option Award Agreement provided to you (the “ Agreement ”). The following provides a summary of the key terms of the grant; however, you should read the entire Agreement, along with the terms of the Plan, to fully understand the grant.

 

SUMMARY OF NON-QUALIFIED STOCK OPTION AWARD

 

Participant: [___________________]
   
Date of Grant: [                    ],[                    ]
   
Vesting Schedule: [________]
   
Exercise Price Per Share: $[________]
   
Total Number of Options Granted:  [                 ]
   
Term/Expiration Date:   [______] Years  ([____________],[______])

 

The above is a summary description of certain provisions of the Agreement and is not intended to be complete. In the event any aspect of this summary conflicts with the terms of the Agreement, the terms of the Agreement shall govern.

 

 

 

 

MEDIFAST, INC.

 

2012 SHARE INCENTIVE PLAN

 

NON-QUALIFIED STOCK OPTION AWARD AGREEMENT

 

This NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (the “ Agreement ”), dated as of [_____________],[______] (the Date of Grant ”), is delivered by Medifast, Inc. (the “ Company ”) to [________________] (the “ Participant ”).

 

RECITALS

 

A.            The Medifast, Inc. 2012 Share Incentive Plan (the “ Plan ”) provides for the grant of options to purchase shares of common stock of the Company. The Company has decided to make a stock option award as an inducement for the Participant to promote the best interests of the Company and its stockholders.

 

B.            The Plan is administered and interpreted by the Compensation Committee of the Board of Directors of the Company (the “Board”) (or a subcommittee thereof), or such other committee of the Board (including, without limitation, the full Board) to which the Board has delegated power to act under or pursuant to the provisions of the Plan (the “Committee”). The Committee may delegate authority to one or more subcommittees as it deems appropriate. If a subcommittee is appointed, all references in this Agreement to the “Committee” shall be deemed to refer to the committee.

 

NOW, THEREFORE , the parties to this Agreement, intending to be legally bound hereby, agree as follows:

 

1.           Grant of Option . Subject to the terms and conditions set forth in this Agreement and in the Plan, the Company hereby grants to the Participant a Non-Qualified Stock Option (the “ Option ”) to purchase [_____] shares of common stock of the Company (“ Shares ”) at an exercise price of $[____] per Share.

 

The Option shall become vested and exercisable according to Paragraph 2 below.

 

2.           Vesting . The Option shall become vested and exercisable, according to the following vesting schedule, if the Participant continues to be employed by, or provide service to, the Company from the Date of Grant until the applicable vesting date:

 

Vesting Date   # of Option Vested
[                        ],[                 ]   [             ]

 

The vesting of the Option shall be cumulative, but shall not exceed 100% of the shares subject to the Option granted above. If the foregoing schedule would produce fractional shares, the portion of the Option that vests shall be rounded down to the nearest whole share.

 

  - 1 -  

 

 

3.           Term of Option .

 

(a)          The Option shall have a term of 10 years from the Date of Grant and shall terminate at the expiration of that period, unless it is terminated at an earlier date pursuant to the provisions of this Agreement or the Plan.

 

(b)          Unless a later termination date is provided for in a Company-sponsored plan, policy or arrangement, or any agreement to which the Company is a party, the Option shall automatically terminate upon the happening of the first of the following events:

 

(i)          The expiration of the 10 year term from the date of grant;

 

(ii)         The expiration of the one (1) year period after the Participant ceases to be employed by, or provide service to, the Company on account of the Participant’s death or Disability; or

 

(iii)        The date on which the Participant ceases to be employed by, or provide services to, the Company on account of a termination by the Company for Cause. In addition, notwithstanding the prior provisions of this Paragraph 3, if the Company determines that the Participant has engaged in conduct that constitutes Cause at any time while the Participant is employed by, or providing services to, the Company or after the Participant’s termination of employment or services, the Option shall terminate as of the date on which such Cause first occurred.

 

Notwithstanding the foregoing, in no event may the Option be exercised after the date that is immediately before the tenth anniversary of the Date of Grant. Any portion of the Option that is not vested and exercisable at the time the Participant ceases to be employed by, or provide service to, the Company shall immediately terminate.

 

(c)          For the purposes of this Agreement, the following terms shall have the meanings set forth below:

 

(i)          “Disability” shall mean a Participant’s becoming disabled within the meaning of the Company’s long-term disability plan applicable to the Participant, or as otherwise determined by the Committee.

 

(ii)         “Cause” shall mean, except to the extent specified otherwise by the Committee or as defined in any other agreement between the Participant and the Company, a finding by the Committee that the Participant has (i) been convicted of a felony or crime involving moral turpitude; (ii) engaged in willful and continued negligence in the performance of the duties assigned to the Participant by the Company, after the Participant has received notice of and failed to cure such negligence; or (iii) breached any written confidentiality, noncompetition or nonsolicitation agreement between the Participant and the Company.

 

  - 2 -  

 

 

4.           Exercise Procedures

 

(a)          Subject to the provisions of Paragraphs 2 and 3 above, the Participant may exercise part or all of the vested Option by giving the Company written notice of intent to exercise in the manner provided in this Agreement, specifying the number of Shares as to which the Option is to be exercised. At such time as the Committee shall determine, the Participant shall pay the exercise price (i) in cash, or (ii) by such other method as the Company may approve. The Company may impose from time to time such limitations as it deems appropriate on the use of Shares of the Company to exercise the Option.

 

(b)          The obligation of the Company to deliver Shares upon exercise of the Option shall be subject to all applicable laws, rules, and regulations and such approvals by governmental agencies as may be deemed appropriate by the Company, including such actions as Company counsel shall deem necessary or appropriate to comply with relevant securities laws and regulations.

 

(c)          All obligations of the Company under this Agreement shall be subject to the rights of the Company as set forth in the Plan to withhold amounts required to be withheld for any taxes, if applicable. Subject to Committee approval, the Participant may elect to satisfy any tax withholding obligation of the Company with respect to the Option by having Shares withheld up to an amount that does not exceed the minimum applicable withholding tax rate for federal (including FICA), state and local tax liabilities.

 

5.           Change in Control . The provisions of the Plan applicable to a Change in Control or other corporate transaction (as described in Sections 8 and 9 of the Plan) shall apply to the Option.

 

6.           Restrictions on Exercise . Except as the Company may otherwise permit pursuant to the Plan, only the Participant may exercise the Option during the Participant’s lifetime and, after the Participant’s death, the Option shall be exercisable (subject to the limitations specified in the Plan) solely by the legal representatives of the Participant, or by the person who acquires the right to exercise the Option by will or by the laws of descent and distribution, to the extent that the Option is vested and exercisable pursuant to this Agreement.

 

7.           Adjustments . The provisions of the Plan applicable to Adjustments (as described in Section 4 of the Plan) shall apply to the Option.

 

8.           Grant Subject to Plan Provisions . This grant is made pursuant to the Plan, the terms of which are incorporated herein by reference, and in all respects shall be interpreted in accordance with the Plan. The grant and exercise of the Option are subject to interpretations, regulations and determinations concerning the Plan established from time to time by the Committee in accordance with the provisions of the Plan, including, but not limited to, provisions pertaining to (i) rights and obligations with respect to withholding taxes, (ii) the registration, qualification or listing of the Shares, (iii) changes in capitalization of the Company and (iv) other requirements of applicable law. The Committee shall have the authority to interpret and construe the Option pursuant to the terms of the Plan, and its decisions shall be conclusive as to any questions arising hereunder.

 

  - 3 -  

 

 

9.           No Employment or Other Rights . The grant of the Option shall not confer upon the Participant any right to be retained by or in the employ or service of the Company and shall not interfere in any way with the right of the Company to terminate the Participant’s employment or service at any time. The right of the Company to terminate at will the Participant’s employment or service at any time for any reason is specifically reserved.

 

10.          No Shareholder Rights . Neither the Participant, nor any person entitled to exercise the Participant’s rights in the event of the Participant’s death, shall have any of the rights and privileges of a shareholder with respect to the Shares subject to the Option, until certificates for Shares have been issued upon the exercise of the Option.

 

11.          Assignment and Transfers . Except as the Committee may otherwise permit pursuant to the Plan, the rights and interests of the Participant under this Agreement may not be sold, assigned, encumbered or otherwise transferred except, in the event of the death of the Participant, by will or by the laws of descent and distribution. In the event of any attempt by the Participant to alienate, assign, pledge, hypothecate, or otherwise dispose of the Option or any right hereunder, except as provided for in this Agreement, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company may terminate the Option by notice to the Participant, and the Option and all rights hereunder shall thereupon become null and void. The rights and protections of the Company hereunder shall extend to any successors or assigns of the Company and to the Company’s parents, subsidiaries, and affiliates. This Agreement may be assigned by the Company without the Participant’s consent.

 

12.          Applicable Law . The validity, construction, interpretation and effect of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflicts of laws provisions thereof.

 

13.          Notice . Any notice to the Company provided for in this Agreement shall be addressed to the Company in care of the Committee, and any notice to the Participant shall be addressed to such Participant at the current address shown on the payroll of the Company, or to such other address as the Participant may designate to the Company in writing. Any notice shall be delivered by hand, sent by telecopy or enclosed in a properly sealed envelope addressed as stated above, deposited, postage prepaid, in a post office regularly maintained by the United States Postal Service.

 

  - 4 -  

 

 

IN WITNESS WHEREOF , the Company has caused its duly authorized officer to execute this Agreement, and the Participant has executed this Agreement, effective as of the Date of Grant.

 

  Medifast, Inc.
   
  By:  
     
  Name:  
     
  Title:  

 

I hereby accept the Option described in this Agreement, and I agree to be bound by the terms of the Plan and this Agreement. I hereby further agree that all the decisions and determinations of the Committee shall be final and binding.

 

  Participant:  
     
  Date:  

 

  - 5 -  

 

Exhibit 10.5

 

MEDIFAST, INC.

 

AMENDED AND RESTATED 2012 SHARE INCENTIVE PLAN

 

PERFORMANCE-BASED DEFERRED SHARE AWARD AGREEMENT

 

Medifast, Inc. (the “ Company ”) has determined to grant to you an award of deferred shares of common stock (“ Award ”) of the Company under the Medifast, Inc. Amended and Restated 2012 Share Incentive Plan (the “ Plan ”). The terms of the grant are set forth in the attached Performance-Based Deferred Share Award Agreement (the “ Agreement ”). The following provides a summary of the key terms of the Agreement; however, you should read the entire Agreement along with the terms of the Plan, to fully understand the Agreement.

 

SUMMARY OF PERFORMANCE-BASED DEFERRED SHARE
AWARD AGREEMENT

 

Participant: [                                                ]
   
Date of Grant: [________],[_______]
   
Maximum Number of Deferred Shares  
that may be Earned: [_______]

 

The above is a summary description of certain provisions of the Agreement and is not intended to be complete. In the event any aspect of this summary conflicts with the terms of the Agreement, the terms of the Agreement shall govern.

 

 

 

 

PERFORMANCE-BASED DEFERRED SHARE AWARD AGREEMENT

 

This PERFORMANCE-BASED DEFERRED SHARE AWARD AGREEMENT (the “ Agreement ”), dated as of [_________],[_______] (the “ Date of Grant ”) is delivered by Medifast, Inc. (the “ Company ”), to [______________] (the “ Participant ”).

 

The Company has determined to provide the Participant a deferred share award under the Medifast, Inc. Amended and Restated 2012 Share Incentive Plan (the “ Plan ”) and in accordance with the terms and conditions set forth in this Agreement. Capitalized terms that are used but not defined herein shall have the respective meanings accorded to such terms in the Plan.

 

The Company and Participant, intending to be legally bound hereby, agree as follows:

 

1.           Grant of Deferred Share Award .

 

The Company grants to Participant [_______] Deferred Shares (the “ Award ”), subject to certain restrictions, terms and conditions as set forth in this Agreement. Each vested Deferred Share entitles the Participant to receive the one Share, such Share subject to the transfer restrictions as described in Paragraph 3 until such Share is vested, as described in Paragraph 2 below.

 

2.           Vesting of Award; Dividend Equivalents .

 

Deferred Shares shall be earned in accordance with the performance goals set forth in Exhibit A attached hereto based on the Company’s performance during the [_______] fiscal year. Immediately following the end of the [_______] fiscal year, the Board shall determine the extent to which the performance goals have been satisfied and the number of Deferred Shares that the Participant has earned with respect to the Award. To the extent the Deferred Shares are earned, the Deferred Shares will be deemed to vest on [_______],[_______] (the “ Initial Vesting Date ”). Any Deferred Shares that the Board deems have not been earned shall be forfeited.

 

Any Shares required to be delivered to you as a result of the vesting of Deferred Shares (the “ Earned Shares ”) shall be delivered no later than [_______],[_______]. Such Earned Shares shall be subject to forfeiture and transfer restrictions and shall vest on [_______],[_______] (the “ Subsequent Vesting Date ”), if the Participant continues to be employed by, or provide service to, the Company from the Date of Grant until the Subsequent Vesting Date. The Participant will be entitled to exercise voting rights with respect to the Earned Shares prior to the Subsequent Vesting Date.

 

Unless otherwise provided in a Company-sponsored plan, policy or arrangement, or any agreement to which the Company is a party, the Participant shall forfeit the Award or the Earned Shares in the event the Participant ceases to be employed by, or provide service to, the Company prior to the Initial Vesting Date or the Subsequent Vesting Date, as applicable.

 

 

 

 

3.           Transferability .

 

The Deferred Shares and Earned Shares issued pursuant to this Agreement may not be assigned, transferred, hypothecated, or encumbered, in whole or in part, either directly or by operation of law or otherwise, including, but not limited to, by execution, levy, garnishment, attachment, pledge, bankruptcy, or in any other manner, except transfer by will or by the laws of descent and distribution. All rights with respect to this Award shall be exercisable during the Participant’s lifetime only by the Participant or the Participant’s guardian or legal representative.

 

4.           Dividend Equivalents .

 

On each dividend payment date for each cash dividend on the Shares, the Company will credit the Participant with dividend equivalents in cash (the “ Cash Dividends ”). The Cash Dividends shall be subject to the same vesting requirements applicable to the Deferred Shares or Earned Shares, as applicable, in respect of which they were credited and shall be settled in accordance with, and at the time of, settlement of the vested Earned Shares to which they are related. Cash Dividends applicable to Deferred Shares and/or Earned Shares that are subsequently forfeited shall be forfeited. If the Participant’s vested Earned Shares have been settled after the record date but prior to the dividend payment date, any Cash Dividends that would be credited pursuant to this Section 4 shall be settled on or as soon as practicable after the dividend payment date.

 

5.           No Stockholder Rights Prior to Settlement; Issuance of Certificates .

 

(a)          The Participant shall have no rights as a stockholder with respect to any Shares represented by the Deferred Shares until the date of issuance of the Earned Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), if applicable. Unless otherwise required by the Plan or this Agreement, no adjustment shall be made for dividends, distributions, or other rights for which the record date is prior to the date, if any, that Shares are issued.

 

(b)          Stock certificates representing the Earned Shares may be issued by the Company and held in escrow by the Company until the Earned Shares vest, or the Company may hold non-certificated shares until the Earned Shares vest.

 

(c)          When the Participant obtains a vested right to the Earned Shares, a certificate representing the vested shares shall be issued to the Participant, free of the restrictions under Section 3 of this Agreement.

 

(d)          The obligation of the Company to deliver shares upon the vesting of the Award shall be subject to all applicable laws, rules, and regulations and such approvals by governmental agencies as may be deemed appropriately to comply with relevant securities laws and regulations.

 

6.           Change in Control .

 

The provisions of the Plan applicable to a Change in Control or other corporate transaction (as described in Sections 8 and 9 of the Plan) shall apply to the Award.

 

  2  

 

 

7.           Withholding .

 

The Participant shall be required to pay to the Company, or make other arrangements satisfactory to the Company to provide for the payment of, any federal, state, local or other taxes that the Company is required to withhold with respect to the grant or vesting of the Award. Subject to Committee approval, the Participant may elect to satisfy any tax withholding obligation of the Company with respect to the Award by having shares withheld up to an amount that does not exceed the minimum applicable withholding tax rate for federal (including FICA), state, local and other tax liabilities.

 

7.           Miscellaneous .

 

(a)           No Right to Employment . The grant of the Award shall not be construed as giving the Participant the right to be retained by or in the employ of the Company or any other employment right.

 

(b)           Award Subject to Plan . By entering into this Agreement the Participant agrees and acknowledges that the Award is subject to the Plan. The terms and provisions of the Plan, as they may be amended from time to time, are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.

 

(c)           Committee Authority . By entering into this Agreement the Participant agrees and acknowledges that all decisions and determinations of the Committee shall be final and binding on the Participant, his or her beneficiaries and any other person having or claiming an interest in the Award.

 

(d)           Severability . If any provision of this Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify this Agreement or the Award under any applicable law, such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of this Agreement and the grant of the Award hereunder, such provision shall be stricken as to such jurisdiction and the remainder of this Agreement and the award shall remain in full force and effect).

 

(e)           Notices . Any notice to be given to Company under the terms of this Agreement shall be addressed to the Company, at the attention of the Committee, at its principal place of business, and any notice to be given to Participant may be sent to Participant’s address as it appears in the payroll records of the Company, or at such other addresses as either party may designate in writing to the other

 

(f)           Governing Law . The validity, construction, interpretation and effect of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof

 

(g)           Interpretation . The Participant accepts the Award subject to all the terms and provisions of this Agreement and the terms and conditions of the Plan.

 

  3  

 

 

(g)           Headings . Headings are given to the paragraphs and subparagraphs of this Agreement solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Agreement or any provision thereof.

 

(h)           Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Facsimile or other electronic transmission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

 

(i)           Complete Agreement . Except as otherwise provided for herein, this Agreement and those agreements and documents expressly referred to herein embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

 

[Signature Page Follows]

 

  4  

 

 

IN WITNESS WHEREOF , the Company and Participant have executed this Agreement as of the grant date shown above.

 

  Medifast, Inc.
   
   
  By:  
    Name:
    Title:  
   
  GRANTEE:
   
   
  Name:  [ Insert Name ]

 

( Signature Page to Performance-Based Deferred Share Award Agreement )

 

 

 

 

EXHIBIT A

 

[_______] Performance Goals

 

 

 

 

Exhibit 21.1

 

Subsidiaries of Medifast, Inc.

 

Corporate Subsidiaries   State of Incorporation
Jason Enterprises, Inc.   Delaware
Jason Pharmaceuticals, Inc.   Maryland
Jason Properties, LLC   Delaware
Medifast DISC, Inc.   Delaware
Medifast Franchise Systems, Inc.   Delaware
Medifast Franchise Systems, Inc. Canada   Ontario, Canada
Medifast Nutrition, Inc.   Ontario, Canada
Seven Crondall Associates, LLC   Maryland
Six Crondall Associates, LLC   Maryland
Take Shape For Life, LLC   Delaware

 

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in Registration Statement No. 333-187974 on Form S-8 of Medifast, Inc. of our reports dated March 15, 2016, relating to our audits of the consolidated financial statements and internal control over financial reporting, which appear in this Annual Report on Form 10-K of Medifast, Inc. for the year ended December 31, 2015.

 

/s/ RSM US LLP

 

Baltimore, Maryland

March 15, 2016

 

 

 

Exhibit 31.1

RULE 13a-14(a) CERTIFICATION

 

I, Michael C. MacDonald, certify that:

 

1. I have reviewed this report on Form 10-K of Medifast, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

  

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: March 15, 2016

 

/s/     Michael C. MacDonald  
   
Michael C. MacDonald  
Chief Executive Officer  

 

 

 

 

Exhibit 31.2

RULE 13a-14(a) CERTIFICATION

 

I , Timothy G. Robinson certify that:

 

1. I have reviewed this report on Form 10-K of Medifast, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: March 15, 2016

 

/s/    Timothy G. Robinson  
   

Timothy G. Robinson

Chief Financial Officer

 

 

 

 

 

Exhibit 32

 

CERTIFICATION PURSUANT TO

 

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Annual Report of Medifast, Inc. (the “Company”) on Form 10-K for the year ended December 31, 2015 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I Michael C. MacDonald, Chief Executive Officer and I Timothy G. Robinson, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge, that:

 

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

(2) The information contained in the report fairly presents, in all material respects, the financial condition and results of the operations of the Company.

 

By: /s/ Michael C. MacDonald  
Michael C. MacDonald  
Chief Executive Officer  
March 15, 2016  
   
By: /s/ Timothy G. Robinson  
Timothy G. Robinson  
Chief Financial Officer  
March 15, 2016