UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

Form 10-Q

 

 

 

[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the quarterly period ended: September 30, 2020 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: 000-53166

 

 

 

 

MusclePharm Corporation

(Exact name of registrant as specified in its charter)

 

 

 

Nevada   77-0664193

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

   

4500 Park Granada, Suite 202

Calabasas, CA

  91302
(Address of principal executive offices)   (Zip code)

 

(800) 292-3909

(Registrant’s telephone number, including area code)

 

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

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
N/A        

 

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 every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). [  ] Yes [X] No

 

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

 

Large accelerated filer [  ] Accelerated filer [  ]
Non-accelerated filer [X] Smaller reporting company [X]
    Emerging growth company [  ]

 

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

 

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

 

Number of shares of the registrant’s common stock outstanding at November 16, 2020: 33,130,039 (excludes 875,621 shares of common stock held in treasury).

 

 

 

 

 

 

MusclePharm Corporation

Form 10-Q

 

TABLE OF CONTENTS

 

    Page
     
Note About Forward-Looking Statements 1
   
PART I – FINANCIAL INFORMATION  
     
Item 1. Financial Statements 2
     
  Consolidated Balance Sheets as of September 30, 2020 (unaudited) and December 31, 2019 2
     
  Consolidated Statements of Operations for the three and nine months ended September 30, 2020 and 2019 (unaudited) 3
     
  Consolidated Statements of Comprehensive Income (Loss) for the three and nine months ended September 30, 2020 and 2019 (unaudited) 4
     
  Consolidated Statements of Changes in Stockholders’ Deficit for the three and nine months ended September 30, 2020 and 2019 (unaudited) 5
     
  Consolidated Statements of Cash Flows for the nine months ended September 30, 2020 and 2019 (unaudited) 7
     
  Notes to Consolidated Financial Statements (unaudited) 8
     
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 29
     
Item 3. Quantitative and Qualitative Disclosures About Market Risk 42
     
Item 4. Controls and Procedures 43
   
PART II – OTHER INFORMATION  
     
Item 1. Legal Proceedings 48
     
Item 1A. Risk Factors 51
     
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 51
     
Item 3. Defaults Upon Senior Securities. 51
     
Item 4. Mine Safety Disclosures 51
     
Item 5. Other Information 51
     
Item 6. Exhibits 52
     
  Signatures 53

 

 

 

 

About this Report

 

This Form 10-Q relates to the Company’s (as defined below) quarterly period ended September 30, 2020. As previously indicated by the Company, it has been delinquent in its filings with the Securities and Exchange Commission (the “SEC”) and is making this filing after its due date. Simultaneously with making this filing, the Company also is filing its Form 10-Q for the quarterly period ended March 31, 2020 and June 30, 2020.

 

Forward-Looking Statements

 

Except as otherwise indicated herein, the terms “MusclePharm,” “Company,” “we,” “our” and “us” refer to MusclePharm Corporation and its subsidiaries. This Quarterly Report on Form 10-Q contains forward-looking statements. All statements contained in this Quarterly Report on Form 10-Q other than statements of historical fact, including statements regarding our future results of operations and financial position, including our future profits, financing sources and our ability to satisfy our liabilities, our business strategy and plans, and our objectives for future operations, are forward-looking statements. The words “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” and similar expressions are intended to identify forward-looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and trends that we believe may affect our financial condition, results of operations, business strategy, short-term and long-term business operations and objectives, and financial needs.

 

These forward-looking statements are subject to a number of risks, uncertainties and assumptions, including those described in Item 1A, “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on August 25, 2020. Moreover, we operate in a very competitive and rapidly changing environment. In particular, we have experienced a slowdown in sales from our retail customers due to the ongoing COVID-19 pandemic, and we cannot predict the ultimate impact of the COVID-19 pandemic on our business. New risks may emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks, uncertainties and assumptions, the future events and trends discussed in this Quarterly Report on Form 10-Q may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements.

 

We undertake no obligation to revise or publicly release the results of any revision to these forward-looking statements, except as required by law. Given these risks and uncertainties, readers are cautioned not to place undue reliance on such forward-looking statements.

 

Note Regarding Trademarks

 

We have proprietary rights to a number of registered and unregistered trademarks worldwide that we believe are important to our business, including, but not limited to: “MusclePharm” and “FitMiss”. We have, in certain cases, omitted the ®, © and ™ designations for these and other trademarks used in this Form 10-Q. Nevertheless, all rights to such trademarks are reserved. These and other trademarks referenced in this Form 10-Q are the property of their respective owners.

 

1

 

 

PART I—FINANCIAL INFORMATION

Item 1. Financial Statements

 

MusclePharm Corporation

Consolidated Balance Sheets

(In thousands, except share and per share data)

 

    September 30, 2020     December 31, 2019  
      (Unaudited)          
ASSETS                
Current assets:                
Cash   $ 1,085     $ 1,532  
Accounts receivable, net     5,205       4,807  
Inventory     1,487       4,720  
Prepaid expenses and other current assets     1,070       1,104  
Total current assets     8,847       12,163  
Property and equipment, net     46       216  
Intangible assets, net     436       676  
Operating lease right-of-use assets     541       1,175  
Other assets     347       310  
TOTAL ASSETS   $ 10,217     $ 14,540  
LIABILITIES AND STOCKHOLDERS’ DEFICIT                
Current liabilities:                
Obligation under secured borrowing arrangement   $ 2,916     $ 4,443  
Line of credit     514       4,204  
Operating lease liability, current     395       624  
Convertible note with a related party, net of discount     2,735       1,034  
Accounts payable     21,343       26,178  
Accrued and other liabilities     6,391       5,058  
Total current liabilities     34,294       41,541  
Operating lease liability, long-term     447       723  
Other long-term liabilities     2,741       228  
Total liabilities     37,482       42,492  
Commitments and contingencies (Note 8)                
Stockholders’ deficit:                
Common stock, par value of $0.001 per share; 100,000,000 shares authorized, 34,005,660 and 33,876,033 shares issued as of September 30, 2020 and December 31, 2019, respectively; 33,130,039 and 33,000,412 shares outstanding as of September 30, 2020 and December 31, 2019, respectively.     31       31  
Additional paid-in capital     178,236       177,914  
Treasury stock, at cost; 875,621 shares     (10,039 )     (10,039 )
Accumulated deficit     (195,493 )     (195,858 )
TOTAL STOCKHOLDERS’ DEFICIT     (27,265 )     (27,952 )
TOTAL LIABILITIES AND STOCKHOLDERS’ DEFICIT   $ 10,217     $ 14,540  

 

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

 

2

 

 

MusclePharm Corporation

Consolidated Statements of Operations

(In thousands, except share and per share data)

(Unaudited)

 

   

Three Months Ended

September 30,

   

Nine Months Ended

September 30,

 
    2020     2019     2020     2019  
Revenue, net   $ 16,085     $ 21,175     $ 49,309     $ 62,249  
Cost of revenue     11,073       19,649       34,504       56,077  
Gross profit     5,012       1,526       14,805       6,172  
Operating expenses:                                
Advertising and promotion     49       574       362       2,134  
Salaries and benefits     1,538       2,070       4,993       5,844  
Selling, general and administrative     1,737       2,127       5,455       7,658  
Professional fees     885       842       2,291       2,783  
Impairment of operating lease right-of-use asset     167             167        
Total operating expenses     4,376       5,613       13,268       18,419  
Income (loss) from operations     636       (4,087 )     1,537       (12,247 )
Other income (expense):                                
Loss on settlement obligation           (16 )     (87 )     (125 )
Gain on settlement of payables     518             518        
Interest and other expense, net     (456 )     (923 )     (1,539 )     (3,007 )
Income (loss) before provision for income taxes     698       (5,026 )     429       (15,379 )
Provision for income taxes     20       53       64       89  
Net income (loss)   $ 678     $ (5,079 )   $ 365     $ (15,468 )
                                 
Net income (loss) per share, basic   $ 0.02     $ (0.27 )   $ 0.01     $ (0.94 )
Net income (loss) per share, diluted   $ 0.01     $ (0.27 )   $ 0.01     $ (0.94 )
                                 
Weighted average shares used to compute net income (loss) per share, basic     33,008,189       18,527,438       32,746,147       16,443,945  
Weighted average shares used to compute net income (loss) per share, diluted     49,097,595       18,527,438       48,835,553       16,443,945  

 

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

 

3

 

 

MusclePharm Corporation

Consolidated Statements of Comprehensive Loss

(In thousands)

(Unaudited)

 

    Three Months Ended September 30,    

Nine Months

Ended September 30,

 
    2020     2019     2020     2019  
Net income (loss)   $ 678     $ (5,079 )   $ 365     $ (15,468 )
Other comprehensive income (loss):                                
Change in foreign currency translation adjustment           (3 )           180  
Comprehensive income (loss)   $ 678     $ (5,082 )   $ 365     $ (15,288 )

 

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

 

4

 

 

MusclePharm Corporation

Consolidated Statements of Changes in Stockholders’ Deficit

(In thousands, except share data)

(Unaudited)

 

                      Accumulated              
          Additional           Other           Total  
    Common Stock     Paid-in     Treasury     Comprehensive     Accumulated     Stockholders’  
    Shares     Amount     Capital     Stock     Loss     Deficit     Deficit  
Balance—December 31, 2018     15,314,667     $ 15     $ 158,944     $ (10,039 )   $ (238 )   $ (176,877 )   $           (28,195 )
Stock-based compensation for issuance and amortization of restricted stock awards to employees, executives, and directors                 65                         65  
Issuance of shares of common stock related to the payment of advertising services     336,113             96                         96  
Change in foreign currency translation adjustment                             233       (54 )     179  
Net loss                                   (4,505 )     (4,505 )
Balance—March 31, 2019     15,650,780     $ 15     $ 159,105     $ (10,039 )   $ (5 )   $ (181,436 )   $ (32,360 )
Stock-based compensation for issuance and amortization of restricted stock awards to employees, executives, and directors                 63                         63  
Issuance of shares of common stock related to the payment of advertising services     153,147             344                         344  
Change in foreign currency translation adjustment                             4             4  
Net loss                                   (5,884 )     (5,884 )
Balance—June 30, 2019     15,803,927     $ 15     $ 159,512     $ (10,039 )   $ (1 )   $ (187,320 )   $ (37,883 )
Stock-based compensation for issuance and amortization of restricted stock awards to employees, executives, and directors     595,238             62                         62  
Issuance of shares of common stock related to the payment of advertising services     180,919             153                         153  
Shares issued upon conversion of note payable     16,216,216       16       17,984                         18,000  
Issuance of shares of common stock related to the settlement of litigation     150,000             60                         60  
Change in foreign currency translation adjustment                             (3 )           (3 )
Net loss                                   (5,079 )     (5,079 )
Balance—September 30, 2019     32,946,300     $ 31     $ 177,771     $ (10,039 )   $ (4 )   $ (192,399 )   $ (24,640 )

 

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

 

5

 

 

MusclePharm Corporation

Consolidated Statements of Changes in Stockholders’ Deficit

(In thousands, except share data)

(Unaudited)

 

                Additional                 Total  
    Common Stock     Paid-in     Treasury     Accumulated     Stockholders’  
    Shares     Amount     Capital     Stock     Deficit     Deficit  
Balance—December 31, 2019     33,000,412     $ 31     $ 177,914     $ (10,039 )   $ (195,858 )   $           (27,952 )
Stock-based compensation for issuance and amortization of restricted stock awards to employees, executives, and directors                 100                   100  
Issuance of shares of common stock related to the payment of advertising services     101,454             47                   47  
Net loss                               (60 )     (60 )
Balance—March 31, 2020     33,101,866     $ 31     $ 178,061     $ (10,039 )   $ (195,918 )   $ (27,865 )
Stock-based compensation for issuance and amortization of restricted stock awards to employees, executives, and directors                 79                   79  
Issuance of shares of common stock related to the payment of advertising services     28,173             69                   69  
Net loss                             (253 )     (253 )
Balance—June 30, 2020     33,130,039     $ 31     $ 178,209     $ (10,039 )   $ (196,171 )   $ (27,970 )
Stock-based compensation for issuance and amortization of restricted stock awards to employees, executives, and directors                 27                   27  
Net income                             678       678  
Balance—September 30, 2020     33,130,039     $ 31     $ 178,236     $ (10,039 )   $ (195,493 )   $ (27,265 )

 

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

 

6

 

 

MusclePharm Corporation

Consolidated Statements of Cash Flows

(Unaudited, in thousands)

 

   

Nine Months Ended

September 30,

 
    2020     2019  
CASH FLOWS FROM OPERATING ACTIVITIES:                
Net income (loss)   $ 365     $ (15,468 )
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:                
Depreciation and amortization of property and equipment     130       269  
Amortization of intangible assets     240       240  
Bad debt expense     174       41  
(Gain) loss on disposal of property and equipment     (176 )     5  
Amortization of debt discount           60  
Gain on settlement of payables     (518 )      
Inventory provision     (115 )     375  
Stock-based compensation     206       190  
Issuance of common stock to non-employees     116       653  
Write off of cumulative translation adjustments           175  
Impairment of operating lease right-of-use assets     167        
Changes in operating assets and liabilities:                
Accounts receivable     (572 )     1,056  
Inventory     3,347       6,197  
Prepaid expenses and other current assets     36       (236 )
Other assets     429       533  
Accounts payable and accrued liabilities     (1,259 )     1,676  
Net cash provided by (used in) operating activities     2,570       (4,234 )
CASH FLOWS FROM INVESTING ACTIVITIES:                
Purchase of property and equipment     (4 )     (13 )
Proceeds from disposal of property and equipment     220        
Net cash provided by (used in) investing activities   216     (13 )
CASH FLOWS FROM FINANCING ACTIVITIES:                
Payments on line of credit     (2,452 )      
Proceeds from line of credit           1,500  
Proceeds from secured borrowing arrangement, net of reserves     32,762       31,225  
Payments on secured borrowing arrangement, net of fees     (34,289 )     (29,171 )
Repayment of finance lease obligations     (54 )     (88 )
Repayment of notes payable     (165 )      
Proceeds from issuance of PPP loan     965        
Net cash (used in) provided by financing activities     (3,233 )     3,466  
Effect of exchange rate changes on cash           7  
NET CHANGE IN CASH     (447 )     (774 )
CASH — BEGINNING OF PERIOD     1,532       2,317  
CASH — END OF PERIOD   $ 1,085     $ 1,543  
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:                
Cash paid for interest   $ 522     $ 1,171  
Cash paid for taxes   $     $ 73  
SUPPLEMENTAL DISCLOSURE OF NON-CASH ACTIVITIES:                
Convertible secured note settled through the issuance of common stock   $     $ 16,841  
Operating lease right-of-use assets and lease obligations (ASC 842)   $     $ 2,117  
Property and equipment acquired in conjunction with finance leases   $     $ 29  

 

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

 

7

 

 

MusclePharm Corporation

Notes to Consolidated Financial Statements

(Unaudited)

 

Note 1. Description of Business

 

Description of Business

 

MusclePharm Corporation was incorporated in Nevada in 2006. Except as otherwise indicated herein or the context requires otherwise, the terms “MusclePharm,” the “Company,” “we,” “our” and “us” refer to MusclePharm Corporation and its subsidiaries. The Company is a scientifically-driven, performance lifestyle company that develops, markets and distributes branded sports nutrition products and nutritional supplements that are manufactured by the Company’s co-manufacturers. Our portfolio of recognized brands, including MusclePharm® and FitMiss®, is marketed and sold globally. The Company is headquartered in Calabasas, California and, as of September 30, 2020, had the following wholly-owned operating subsidiaries: MusclePharm Canada Enterprises Corp., MusclePharm Ireland Limited and MusclePharm Australia Pty Limited.

 

The Company has incurred significant losses and experienced negative cash flows since inception. As of September 30, 2020, the Company had cash of $1.1 million, a decline of $0.4 million from the December 31, 2019 balance of $1.5 million. As of September 30, 2020, we had a working capital deficit of $25.4 million, a stockholders’ deficit of $27.3 million and an accumulated deficit of $195.5 million resulting from recurring losses from operations. As a result of our history of losses and financial condition, there is substantial doubt about our ability to continue as a going concern.

 

The ability to continue as a going concern is dependent upon us generating profits in the future and/or obtaining the necessary financing to meet our obligations and repay our liabilities arising from normal business operations when they come due. Management is evaluating different strategies to obtain financing to fund our expenses and achieve a level of revenue adequate to support our current cost structure. Financing strategies may include, but are not limited to, private placements of capital stock, debt borrowings, partnerships and/or collaborations.

 

In response to the Company’s continued net loss in 2019, management implemented the following measures to improve gross profit:

 

  1) reduced or eliminated sales to low or negative margin customers;
  2) reduced product discounts and promotional activity;
  3) implemented a more aggressive SKU reduction;
  4) formed a pricing committee to review all orders to better align gross profit expectations with product availability.

 

As a result of these measures, as well as a reduction in protein prices, the Company realized increased gross profit in the fourth quarter of 2019, a trend which continued into the third quarter of 2020. Beginning in April 2020, the Company experienced a slowdown, which has continued to date, in sales from its retail customers, including its largest customer. This decline has been partially offset by a growth in sales to our largest online customers, although there can be no assurances that such growth will continue, or that the Company will have the financial resources to produce the additional quantities required by these customers. In 2020, the Company also negotiated lower costs of goods sold with our co-manufacturers. Management believes reductions in operating costs and continued focus on gross profit will allow us to ultimately achieve profitability, however, the Company can give no assurances that this will occur. To manage cash flow, the Company has entered into multiple financing arrangements. See additional information in “Note 7. Debt.”

 

Our results of operations are affected by economic conditions, including macroeconomic conditions and levels of business confidence. There continues to be significant volatility and economic uncertainty in many markets and the ongoing COVID-19 pandemic has increased that level of volatility and uncertainty and has created economic disruption. We are actively managing our business to respond to the impact.

 

8

 

 

Note 2. Summary of Significant Accounting Policies

 

Basis of Presentation and Principles of Consolidation

 

The accompanying unaudited interim consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) and with the instructions to Form 10-Q and Article 10 of Regulation S-X for interim financial information. Accordingly, these statements do not include all of the information and notes required by GAAP for complete financial statements. The consolidated financial statements include the accounts of MusclePharm Corporation and its wholly-owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.

 

The Company’s management believes the unaudited interim consolidated financial statements include all adjustments of a normal recurring nature necessary for the fair presentation of the Company’s financial position as of September 30, 2020, results of operations for the three and nine months ended September 30, 2020 and 2019, and cash flows for the nine months ended September 30, 2020 and 2019. The results of operations for the three and nine months ended September 30, 2020 are not necessarily indicative of the results to be expected for the year ended December 31, 2020. Certain prior period amounts have been conformed to the current period’s presentation.

 

These unaudited interim consolidated financial statements should be read in conjunction with the consolidated financial statements and related notes included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on August 25, 2020.

 

Use of Estimates

 

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

 

Revenue Recognition

 

Revenue is recognized when control of the promised goods or services is transferred to the Company’s customers in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods or services.

 

  a. Nature of Goods and Services

 

The Company sells a variety of protein products through a broad distribution platform that includes supermarkets, mass merchandisers, wholesale clubs, drugstores, convenience stores, home stores, specialty stores and websites and other e-commerce channels, all of which sell our products to consumers.

 

  b. When Performance Obligations are Satisfied

 

For performance obligations related to the shipping and invoicing of products, control transfers at the point in time upon which finished goods are delivered to the Company’s customers or when finished goods are picked up by a customer or a customer’s carrier, depending on shipping terms. Once a product has been delivered or picked up by the customer, the customer is able to direct the use of, and obtain substantially all of the remaining benefits from the asset. The Company considers control to have transferred upon delivery or customer receipt because the Company has an enforceable right to payment at that time, the customer has legal title to the asset, the Company has transferred physical possession of the asset, and the customer has significant risk and rewards of ownership of the asset.

 

9

 

 

  c. Variable Consideration

 

The Company conducts extensive promotional activities, primarily through the use of off-list discounts, slotting, coupons, cooperative advertising, periodic price reduction arrangements, and end-aisle and other in-store displays. The costs of such activities are netted against sales and are recorded when the related sale takes place. The reserves for sales returns and consumer and trade promotion liabilities are established based on the Company’s best estimate of the amounts necessary to settle future and existing obligations for products sold as of the balance sheet date. To determine the appropriate timing of recognition of consideration payable to a customer, all consideration payable to our customers is reflected in the transaction price at inception and reassessed routinely.

 

  d. Practical Expedients

 

The Company expenses incremental direct costs of obtaining a contract (broker commissions) when the related sale takes place, since the amortization period of the commissions paid for the sale of products is less than a year. These costs are recorded in “Selling, general and administrative” expenses in the accompanying consolidated statements of income.

 

The Company accounts for shipping and handling costs as fulfillment activities, which are therefore recognized upon shipment of the goods.

 

For the three and nine months ended September 30, 2020, the Company incurred $0.2 million and $0.9 million, respectively, of inbound shipping and handling costs. For the three and nine months ended September 30, 2019, the Company incurred $0.3 million and $0.9 million, respectively, of inbound shipping and handling costs. Shipping and handling costs related to inbound purchases of raw material and finished goods are included in cost of revenues in our consolidated statements of operations.

 

For the three and nine months ended September 30, 2020, the Company incurred $0.6 million and $1.7 million, respectively, of shipping and handling costs related to shipments to our customers. For the three and nine months ended September 30, 2019, the Company incurred $0.9 million and $2.9 million, respectively, of shipping and handling costs related to shipments to our customers. Shipping and handling costs related to shipments to our customers is included in selling, general and administrative expenses in our consolidated statements of operations.

 

The Company excludes from its revenue any amounts collected from customers for sales (and similar) taxes. During the three months ended September 30, 2020 and 2019, the Company recorded discounts, and to a lesser degree, sales returns, totaling $4.1 million and $7.0 million, respectively, which accounted for 20% and 25% of gross revenue in each period, respectively. During the nine months ended September 30, 2020 and 2019, the Company recorded discounts, and to a lesser degree, sales returns, totaling $11.7 million and $22.5 million, respectively, which accounted for 19% and 27% of gross revenue in each period, respectively.

 

Concentrations

 

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

 

10

 

 

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

 

    Percentage of
Revenue, net for the Three Months Ended
September 30,
    Percentage of
Revenue, net for the Nine Months Ended
September 30,
    Percentage of Net
Accounts Receivable as of
 
    2020     2019     2020     2019     September 30, 2020     December 31, 2019  
Customers                                                
Costco     46 %     34 %     37 %     33 %     37 %     34 %
Amazon     10 %     16 %     19 %     13 %     20 %     20 %
iHerb     *       18 %     *       16 %     *       *  
Coupang Global, LLC     *       *       13 %     *       11 %     *  

 

* Represents less than 10% of net revenue or net accounts receivable.

 

The Company uses a limited number of non-affiliated suppliers for contract manufacturing of its products. The Company had the following concentration of purchases with contract manufacturers:

 

    For the Three Months Ended
September 30,
    For the Nine Months Ended
September 30,
 
    2020     2019     2020     2019  
Vendor                                
Nutra Blend     *       19 %     *       25 %
S.K. Laboratories     10 %     26 %     26 %     36 %
Mill Haven Foods LLC     *       11 %     22 %     *  
Innovations in Nutrition and Wellness     37 %     *       23 %     *  
Bakery Barn     *       10 %     *       *  
JW Nutritional     *       12 %     *       *  

 

* Represents less than 10% of total purchases.

 

Share-Based Payments and Stock-Based Compensation

 

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

 

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

 

11

 

 

Recent Accounting Pronouncements

 

In July 2016, the FASB issued ASU No. 2016-13, Financial Instruments – Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments (“ASU 2016-13”), which among other things, these amendments require the measurement of all expected credit losses of financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable forecasts. Financial institutions and other organizations will now use forward-looking information to better inform their credit loss estimates. In addition, the ASU amends the accounting for credit losses on available-for-sale debt securities and purchased financial assets with credit deterioration. ASU 2016-13 is effective for periods beginning after December 15, 2022, and interim periods within those fiscal years. The Company will evaluate the impact of the pronouncement closer to the effective date.

 

In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes, expected to reduce cost and complexity related to the accounting for income taxes. The ASU removes specific exceptions to the general principles in Topic 740 in GAAP. It eliminates the need for an organization to analyze whether the following apply in a given period: exception to the incremental approach for intra-period tax allocation; exceptions to accounting for basis differences when there are ownership changes in foreign investments; and exception in interim period income tax accounting for year-to-date losses that exceed anticipated losses. The ASU also improves financial statement preparers’ application of income tax-related guidance and simplifies GAAP for: franchise taxes that are partially based on income; transactions with a government that result in a step up in the tax basis of goodwill; separate financial statements of legal entities that are not subject to tax; and enacted changes in tax laws in interim periods. This guidance is effective for fiscal years and interim periods within those years beginning after December 15, 2020 with early adoption permitted. Amendments are to be applied prospectively, except for certain amendments that are to be applied either retrospectively or with a modified retrospective approach through a cumulative effect adjustment recorded to retained earnings. The Company is evaluating the impact of the pronouncement.

 

On August 5, 2020, the FASB issued ASU No. 2020-06, Debt - Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging - Contracts in Entity’s Own Equity (Subtopic 815-40). The new ASU eliminates the beneficial conversion and cash conversion accounting models for convertible instruments. It also amends the accounting for certain contracts in an entity’s own equity that are currently accounted for as derivatives because of specific settlement provisions. In addition, the new guidance modifies how particular convertible instruments and certain contracts that may be settled in cash or shares impact the diluted EPS computation. This guidance is effective for fiscal years beginning after December 15, 2023, including interim periods within those fiscal years. Early adoption is permitted, but no earlier than fiscal years beginning after December 15, 2020, including interim periods within those fiscal years. The FASB also specified that an entity should adopt the guidance as of the beginning of its annual fiscal year and is not permitted to adopt the guidance in an interim period. The Company will evaluate the impact of the pronouncement closer to the effective date.

 

Note 3. Fair Value of Financial Instruments

 

As of September 30, 2020, and December 31, 2019, the Company held no assets or liabilities that required re-measurement at fair value on a recurring basis. Cash balances as of September 30, 2020 and December 31, 2019 were $1.1 million and $1.5 million, respectively. The carrying amounts of the cash balances reported in the consolidated balance sheets approximate the fair value.

 

Note 4. Balance Sheet Components

 

Inventory

 

Inventory consisted of raw materials and finished goods, which were located either at one of our co-manufacturers or our warehouse as of September 30, 2020 and December 31, 2019.

 

The Company records charges for obsolete and slow-moving inventory based on the age of the product as determined by the expiration date or otherwise determined to be obsolete. Products within one year of their expiration dates are considered for write-off purposes. Historically, the Company has had minimal returns with established customers. The Company incurred insignificant inventory write-offs during each of the nine months ended September 30, 2020 and 2019. Inventory write-downs, once established, are not reversed as they establish a new cost basis for the inventory.

 

12

 

 

Property and Equipment

 

Property and equipment consisted of the following as of September 30, 2020 and December 31, 2019 (in thousands):

 

   

As of

September 30, 2020

    As of
December 31, 2019
 
Furniture, fixtures and equipment   $ 1,762     $ 2,592  
Leasehold improvements     7       236  
Vehicles     39       39  
Displays     453       453  
Website     497       497  
Property and equipment, gross     2,757       3,817  
Less: accumulated depreciation and amortization     (2,711 )     (3,601 )
Property and equipment, net   $ 46     $ 216  

 

Depreciation and amortization expense related to property and equipment was $24,000 and $75,000 for the three months ended September 30, 2020 and 2019, respectively. Depreciation and amortization expense was $0.1 million and $0.3 million for the nine months ended September 30, 2020 and 2019, respectively. Depreciation and amortization expense is included in “Selling, general, and administrative” expense in the accompanying consolidated statements of operations.

 

Intangible Assets

 

Intangible assets consisted of the following (in thousands):

 

    As of September 30, 2020  
    Gross Value     Accumulated
Amortization
    Net
Carrying
Value
    Remaining Weighted-
Average
Useful Lives
(years)
 
Amortized Intangible Assets                                
Brand (apparel rights)   $ 2,244     $ (1,808 )   $ 436       1.4  
Total intangible assets   $ 2,244     $ (1,808 )   $ 436          

 

    As of December 31, 2019  
   

Gross Value

   

Accumulated
Amortization

   

Net
Carrying
Value

   

Remaining Weighted-
Average
Useful Lives
(years)

 
Amortized Intangible Assets                                
Brand (apparel rights)   $ 2,244     $ (1,568 )   $ 676       2.1  
Total intangible assets   $ 2,244     $ (1,568 )   $ 676          

 

Intangible assets amortization expense was $0.1 million for each of the three months ended September 30, 2020 and 2019, respectively, and $0.2 million for each of the nine months ended September 30, 2020 and 2019, respectively, which is included in “Selling, general and administrative” expense in the accompanying consolidated statements of operations.

 

13

 

 

As of September 30, 2020, the estimated future amortization expense of intangible assets is as follows (in thousands):

 

For the Year Ending December 31,      
Remainder of 2020   $ 80  
2021     320  
2022     36  
Total amortization expense   $ 436  

 

Note 5. Interest and other expense, net

 

For the three and nine months ended September 30, 2020 and 2019, “Interest and other expense, net” consisted of the following (in thousands):

 

   

For the

Three Months

Ended September 30,

   

For the

Nine Months

Ended September 30,

 
    2020     2019     2020     2019  
Interest and other expense, net:                                
Interest expense, related party   $ (76 )   $ (458 )   $ (228 )   $ (1,528 )
Interest expense, related party debt discount           (30 )           (60 )
Interest expense, other     (249 )     (162 )     (581 )     (619 )
Interest expense, secured borrowing arrangement     (312 )     (335 )     (1,060 )     (840 )
Foreign currency transaction loss     (2 )     (11 )     (20 )     (224 )
Other     183       73       350       264  
Total interest and other expense, net   $ (456 )   $ (923 )   $ (1,539 )   $ (3,007 )

 

“Other” primarily includes sublease income and gain on disposal of fixed assets.

 

Note 6. Leases

 

The Company elected not to apply ASC 842 to arrangements with lease terms of 12 month or less. The Company determines if a contract contains a lease when the contract conveys the right to control the use of identified property, plant, or equipment for a period of time in exchange for consideration. Upon identification and commencement of a lease, we establish a ROU asset and a lease liability. ROU assets and lease liabilities are measured and recognized based on the present value of the future minimum lease payments over the lease term at the commencement date. At adoption, the Company reduced the ROU asset through a derecognition of the restructuring liability for its abandoned lease facilities. Subsequent to adoption, the Company no longer recognized lease expense on a straight-line basis, as the impact of the derecognition resulted in a front-loading of the lease expenses.

 

The Company has operating leases for warehouse facilities and office spaces across the U.S. The remaining lease terms for these leases range from 1 to 2 years. The Company also leased manufacturing and warehouse equipment under finance lease arrangements, which expired at various dates through July 2020. The Company does not intend to extend the lease terms expiring in 2020. The lease rental agreement, in which the Company leased a Tennessee warehouse, expired on June 30, 2020. Subsequent to the expiration of the lease, the Company utilized the warehouse and made payments to the landlord on a month-to-month basis between July and August 2020.

 

On July 24, 2020, the Company entered into a sublease agreement (“Sublease Agreement”) with a third-party to sublease the office building at Burbank. The sublease commenced on September 15, 2020 and would be in effect through the remainder of the Company’s lease term (September 15, 2020 through September 30, 2022). Rent will be abated between November 1, 2020 and December 31, 2020 for a total of one and a half months. In September 2020, the Company assessed its existing leases for impairment as the remaining lease costs exceeded the anticipated sublease income on these leases. As a result of the impairment analysis, the Company recorded an impairment charge of $0.2 million.

 

14

 

 

Supplemental balance sheet information related to leases was as follows (in thousands):

 

    Balance Sheet Classification   September 30, 2020     December 31, 2019  
Assets                    
Operating   ROU assets, net   $ 541     $ 1,175  
Finance   Property and equipment, net     9       57  
Total Assets         550       1,232  
                     
Liabilities                    
Current liabilities:                    
Operating   Operating lease liability - current   $ 395     $ 624  
Finance   Current accrued liability           54  
Total current liabilities         395       678  
                     
Non-current liabilities:                    
Operating   Operating lease liability - long term     447       723  
Total non-current liabilities         447       723  
Total lease liabilities       $ 842     $ 1,401  

 

Fixed lease costs represent the explicitly quantified lease payments prescribed by the lease agreement and are included in the measurement of the ROU asset and corresponding lease liability. Some leasing arrangements require variable payments that are dependent on usage, output, or may vary for other reasons, such as insurance and tax payments. The variable lease payments are not presented as part of the initial ROU asset or lease liability. The Company’s lease agreements do not contain any material restrictive covenants.

 

The components of lease cost for operating and finance leases for the three and nine months ended September 30, 2020 were as follows (in thousands):

 

    Income Statement Classification   Three months ended September 30, 2020     Nine months ended September 30, 2020  
Operating lease cost   Selling, general and administrative   $ 139     $ 614  
                     
Finance lease cost:                    
Amortization of right-of-use asset   Selling, general and administrative     7       52  
Interest on lease liabilities   Selling, general and administrative           1  
Total finance lease cost         7       53  
                     
Variable lease payments   Selling, general and administrative     94       260  
Sublease income   Other income     (22 )     (168 )
                     
Total lease cost       $ 218     $ 759  

 

15

 

 

The components of lease cost for operating and finance leases for the three and nine months ended September 30, 2019 were as follows (in thousands):

 

    Income Statement Classification   Three months ended September 30, 2019     Nine months ended September 30, 2019  
Operating lease cost   Selling, general and administrative   $ 264     $ 786  
                     
Finance lease cost:                    
Amortization of right-of-use asset   Selling, general and administrative     30       88  
Interest on lease liabilities   Selling, general and administrative     1       5  
Total finance lease cost         31       93  
                     
Variable lease payments   Selling, general and administrative     55       169  
Sublease income   Other income     (72 )     (262 )
                     
Total lease cost       $ 278     $ 786  

 

The Company had no short-term leases as of September 30, 2020 and 2019. The Company’s leases do not provide an implicit rate; therefore, the Company uses its incremental borrowing rate based on the information available at the effective date in determining the present value of future payments for those leases. Supplemental cash flow information related to leases was as follows:

 

    Nine months ended September 30, 2020     Nine months ended September 30, 2019  
Cash paid for amounts included in the measurement of lease liabilities (in thousands):                
Operating cash flows from operating leases   $ 506     $ 570  
Operating cash flows from finance leases     1       5  
Financing cash flows from finance leases     54       88  
                 
The weighted average remaining lease term was as follows:                
Operating leases (in years)     1.8       2.4  
Finance leases (in years)     0.0       0.7  

 

The weighted average discount rate was as follows:

 

Operating leases     18 %     18 %
Finance leases     5 %     5 %

 

16

 

 

The maturities of lease liabilities at September 30, 2020 were as follows (in thousands):

 

    Operating     Finance  
             
Remaining three months of the year ending 2020   $ 153     $  
2021     481        
2022     369        
Thereafter            
Total future undiscounted lease payments     1,003          
Less amounts representing interest     (162 )      
Present value of lease liabilities   $ 841     $  

 

Note 7. Debt

 

As of September 30, 2020, and December 31, 2019, the Company’s debt consisted of the following (in thousands):

 

    As of
September 30, 2020
    As of
December 31, 2019
 
Refinanced convertible note, related party   $ 2,735     $ 1,034  
Bonds payable           253  
Revolving line of credit, related party           1,239  
Obligations under secured borrowing arrangement     2,916       4,443  
Line of credit – inventory financing     514       2,965  
Notes payable     278       247  
Paycheck Protection Program loan     965        
Total debt     7,408       10,181  
Less: current portion     (6,443 )     (10,130 )
Long term debt   $ 965     $ 51  

 

Related-Party Refinanced Convertible Note

 

On November 3, 2017, the Company entered into the refinancing with Mr. Ryan Drexler, the Company’s Chairman of the Board of Directors, Chief Executive Officer and President (the “Refinancing”). As part of the Refinancing, the Company issued to Mr. Drexler an amended and restated convertible secured promissory note (the “Refinanced Convertible Note”) in the original principal amount of $18.0 million, which amended and restated (i) a convertible secured promissory note dated as of December 7, 2015, amended as of January 14, 2017, in the original principal amount of $6.0 million with an interest rate of 8% prior to the amendment and 10% following the amendment (the “2015 Convertible Note”), (ii) a convertible secured promissory note dated as of November 8, 2016, in the original principal amount of $11.0 million with an interest rate of 10% (the “2016 Convertible Note”), and (iii) a secured demand promissory note dated as of July 27, 2017, in the original principal amount of $1.0 million with an interest rate of 15% (the “2017 Note”, and together with the 2015 Convertible Note and the 2016 Convertible Note, collectively, the “Prior Notes”). The due date of the 2015 Convertible Note and the 2016 Convertible Note was November 8, 2017. The 2017 Note was due on demand.

 

Interest rate on the $18.0 million Refinanced Convertible Note was 12% per annum, and interest payments were due on the last day of each quarter. At the Company’s option (as determined by its independent directors), the Company could repay up to one-sixth of any interest payment by either adding such amount to the principal amount of the note or by converting such interest amount into an equivalent amount of the Company’s common stock. Any interest not paid when due would be capitalized and added to the principal amount of the Refinanced Convertible Note and bear interest on the applicable interest payment date along with all other unpaid principal, capitalized interest, and other capitalized obligations. Both the principal and the interest under the Refinanced Convertible Note were due on December 31, 2019, unless converted earlier. Mr. Drexler could convert the outstanding principal and accrued interest into shares of the Company’s common stock at a conversion price of $1.11 per share at any time. The Company could prepay the Refinanced Convertible Note by giving Mr. Drexler between 15 and 60 days’ notice depending upon the specific circumstances, subject to Mr. Drexler’s conversion right.

 

17

 

 

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

 

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

 

On September 16, 2019, Mr. Ryan Drexler delivered a notice to the Company and its independent directors of his election to convert, effective as of September 16, 2019 (the “Notice Date”), $18.0 million of the amount outstanding under that certain Amended and Restated Convertible Secured Promissory Note, dated as of November 8, 2017 (the “Note”), issued by the Company to Mr. Drexler, into shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at a conversion price of $1.11 per share, pursuant to the terms and conditions of the Note (the “Partial Conversion”). As of the Notice Date, the total amount outstanding under the Note (including principal and accrued and unpaid interest) was equal to $19.3 million. Pursuant to the terms of the Note, the Company instructed the transfer agent to issue to Mr. Drexler 16,216,216 shares (the “Shares”) of its Common Stock in respect of the Partial Conversion.

 

On October 4, 2019, the Company entered into a secured revolving promissory note (the “Revolving Note”) with Mr. Drexler. Under the terms of the Revolving Note, the Company can borrow up to $3.0 million. The Revolving Note bears interest at the rate of 12% annually. The use of funds will be solely for the purchase of whey protein to be used in the manufacturing of MusclePharm products. The Company may prepay the Revolving Note by giving Mr. Drexler one days’ written notice. The Revolving Note contains customary events of default, including, among others, the failure by the Company to make a payment of principal or interest when due. Following an event of default, Mr. Drexler is entitled to accelerate the entire indebtedness under the Revolving Note. The Revolving Note also contains customary restrictions on the ability of the Company to, among other things, grant liens or incur indebtedness other than certain obligations incurred in the ordinary course of business. The restrictions are also subject to certain additional qualifications and carveouts. In connection with the Revolving Note, the Company and Mr. Drexler entered into a security agreement dated October 4, 2019, pursuant to which the Revolving Note is secured by all of the assets and properties of the Company and its subsidiaries whether tangible or intangible.

 

On December 27, 2019, the Company entered into a collateral receipt and security agreement with Mr. Drexler, pursuant to which Mr. Drexler agreed to post bond relating to the judgment ruled against the Company in connection with the litigation between the Company and ThermoLife International LLC (“ThermoLife”), pending the appeal. The amount paid by Mr. Drexler on behalf of the Company, including fees, was $0.3 million.

 

On August 21, 2020, the Company entered into a refinancing agreement with Mr. Ryan Drexler, the Company’s Chairman of the Board of Directors, Chief Executive Officer and President (the “2020 Refinancing”), with an effective date of July 1, 2020. As part of the 2020 Refinancing, the Company issued to Mr. Drexler an amended and restated convertible secured promissory note (the 2020 “Refinanced Convertible Note”) in the original principal amount of $2,735,199, which amended and restated (i) a convertible secured promissory note dated as of November 8, 2017, $1,134,483 of which was outstanding as of July 1, 2020 (ii) a collateral receipt and security agreement with Mr. Drexler dated as of December 27, 2019, $252,500 of which was outstanding as of July 1, 2020, and (iii) a secured revolving promissory note dated as of October 4, 2019, $1,348,216 of which was outstanding as of July 1, 2020. The $2.7 million 2020 Refinanced Convertible Note bears interest at the rate of 12% per annum.

 

18

 

 

The 2020 Refinanced Convertible Note contains customary restrictions on the ability of the Company to, among other things, grant liens or incur indebtedness other than certain obligations incurred in the ordinary course of business. The restrictions are also subject to certain additional qualifications and carveouts, as set forth in the 2020 Refinanced Convertible Note. The 2020 Refinanced Convertible Note is subordinated to certain other indebtedness of the Company held by Prestige Capital Corporation (“Prestige”) and Crossroads Financial Group, LLC (“Crossroads”). The Company may prepay the 2020 Refinanced Convertible Note by giving Mr. Drexler between 15 and 60 days’ notice depending upon the specific circumstances, subject to Mr. Drexler’s conversion right. Mr. Drexler may convert the outstanding principal and accrued interest into shares of the Company’s common stock at a conversion price equal to or greater than (i) the closing price per share of the common stock on the last business day immediately preceding November 1, 2020 or (ii) $0.17.

 

All outstanding principal and accrued but unpaid interest under the 2020 Refinanced Convertible Note were due and payable on November 1, 2020. The Note is currently in default and the Company is in negotiations with Mr. Drexler to either convert the 2020 Refinanced Convertible Note or amend the 2020 Refinancing by the end of November 2020. Interest accrued but unpaid will be capitalized on the due date and added to the principal amount of the 2020 Refinanced Convertible Note.

 

For the three months ended September 30, 2020 and 2019, interest expense, related to the related party convertible notes was $80,000 and $0.5 million, respectively. During the three months ended September 30, 2020, no interest was paid in cash to Mr. Drexler. During the three months ended September 30, 2019, $0.4 million in interest was paid in cash to Mr. Drexler.

 

For the nine months ended September 30, 2020 and 2019, interest expense, related to the related party convertible notes was $0.2 million and $1.6 million, respectively. During the nine months ended September 30, 2020, no interest was paid in cash to Mr. Drexler. During the nine months ended September 30, 2019, $0.8 million in interest was paid in cash to Mr. Drexler.

 

Line of Credit - Inventory Financing

 

On October 6, 2017, the Company entered into a Loan and Security Agreement (“Security Agreement”) with Crossroads. Pursuant to the Security Agreement, the Company may borrow up to 70% of its Inventory Cost or up to 75% of Net Orderly Liquidation Value (each as defined in the Security Agreement), up to a maximum amount of $3.0 million at an interest rate of 1.5% per month, subject to a minimum monthly fee of $22,500. Subsequent to the end of 2017, the maximum amount was increased to $4.0 million. The term of the Security Agreement automatically extends in one-year increments, unless earlier terminated pursuant to the terms of the Security Agreement. The Security Agreement contains customary events of default, including, among others, the failure to make payments on amounts owed when due, default under any other material agreement or the departure of Mr. Drexler. The Security Agreement also contains customary restrictions on the ability of the Company to, among other things, grant liens, incur debt, and transfer assets. Under the Security Agreement, the Company agreed to grant Crossroads a security interest in all of the Company’s present and future accounts, chattel paper, goods (including inventory and equipment), instruments, investment property, documents, general intangibles, intangibles, letter of credit rights, commercial tort claims, deposit accounts, supporting obligations, documents, records and the proceeds thereof. The Security Agreement has second priority lien on the Company’s assets and is subordinated to the Company’s indebtedness held by Prestige. As of September 30, 2020, and December 31, 2019, we owed Crossroads $0.5 million and $3.0 million, respectively.

 

On April 1, 2019, the Company and Crossroads amended the terms of the agreement. The agreement was extended until March 31, 2020, the rate was modified to 1.33% per month, and increased the amount the Company can borrow from $3.0 million to $4.0 million.

 

On February 26, 2020, the Company and Crossroads amended the terms of the agreement. The agreement was extended until April 1, 2021 and the amount the Company can borrow was decreased from $4.0 million to $3.0 million.

 

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Secured Borrowing Arrangement

 

In January 2016, the Company entered into a Purchase and Sale Agreement (the “Purchase and Sale Agreement”) with Prestige, pursuant to which the Company agreed to sell and assign and Prestige agreed to buy and accept, certain accounts receivable owed to the Company (“Accounts”). Under the terms of the Purchase and Sale Agreement, upon the receipt and acceptance of each assignment of Accounts, Prestige will pay the Company 80% of the net face amount of the assigned Accounts, up to a maximum total borrowing of $12.5 million subject to sufficient amounts of accounts receivable to secure the loan. The remaining 20% will be paid to the Company upon collection of the assigned Accounts, less any chargebacks (including chargebacks for any customer amounts that remain outstanding for over 90 days), disputes, or other amounts due to Prestige. Prestige’s purchase of the assigned Accounts from the Company will be at a discount fee which varies based on the number of days outstanding from the assignment of Accounts to collection of the assigned Accounts. In addition, the Company granted Prestige a continuing security interest in and first priority lien upon all accounts receivable, inventory, fixed assets, general intangibles, and other assets. Prestige will have no recourse against the Company if payments are not made due to the insolvency of an account debtor within 90 days of invoice date, with the exception of international and certain domestic customers. As of September 30, 2020 and December 31, 2019, the Company had outstanding borrowings of approximately $3.0 million and $4.4 million, respectively.

 

During the three months ended September 30, 2020 and 2019, the Company assigned to Prestige accounts with an aggregate face amount of approximately $14.6 million and $14.8 million, respectively, for which Prestige paid to the Company approximately $11.6 million and $11.9 million, respectively, in cash. During the three months ended September 30, 2020 and 2019, $11.6 million and $12.5 million was repaid to Prestige, respectively, including fees and interest.

 

During the nine months ended September 30, 2020 and 2019, the Company assigned to Prestige accounts with an aggregate face amount of approximately $41.0 million and $39.0 million, respectively, for which Prestige paid to the Company approximately $32.8 million and $31.2 million, respectively, in cash. During the nine months ended September 30, 2020 and 2019, $34.3 million and $29.2 million was repaid to Prestige, respectively, including fees and interest.

 

On April 10, 2019, the Company and Prestige amended the terms of the agreement. The agreement was extended until April 1, 2020. Thereafter the agreement shall renew itself automatically for one (1) year periods unless either party receives written notice of cancellation from the other, at minimum, thirty (30) days prior to the expiration date.

 

Paycheck Protection Program Loan

 

Due to economic uncertainty as a result of the ongoing pandemic (COVID-19), on May 14, 2020, the Company received an aggregate principal amount of $964,910 pursuant to the borrowing arrangement (“Note”) with Harvest Small Business Finance, LLC (“HSBF”) and agreed to pay the principal amount plus interest at a 1% fixed interest rate per year, on the unpaid principal balance. The Note includes forgiveness provisions in accordance with the requirements of the Paycheck Protection Program, Section 1106 of the CARES Act.

 

The Note is expected to mature on May 16, 2022. Payments were due by November 16, 2020 (the “Deferment Period”) and interest was accrued during the Deferment Period. However, the Flexibility Act, which was signed into law on June 5, 2020, extended the Deferment Period to the date that the forgiven amount is remitted by the United States Small Business Administration (“SBA”) to HSBF. The Company is in the process of filling out the forgiveness application form. As of September 30, 2020, the Company owed approximately $1.0 million (principal plus accrued interest), and the amount is recorded in “Other long-term liabilities” in the consolidated balance sheets.

 

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Note 8. Commitments and Contingencies

 

Settlements

 

Manchester City Football Group

 

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

 

On July 28, 2017, the Company approved a Settlement Agreement (the “CFG Settlement Agreement”) with CFG effective July 7, 2017. The CFG Settlement Agreement represents a full and final settlement of all litigation between the parties. Under the terms of the agreement, the Company agreed to pay CFG a sum of $3 million, which was recorded as accrued expenses in 2017. The settlement consists of a $1 million payment that was advanced by a related party on July 7, 2017, a $1 million installment paid on July 7, 2018 and a subsequent $1 million installment payment to be paid by July 7, 2019. Of this amount, the Company has remitted $0.3 million.

 

During each of the three months ended September 30, 2020 and 2019, the Company recorded a charge of $19,000 and during the nine months ended September 30, 2020 and 2019, the Company recorded a charge of $56,000 and $77,000, respectively. This charge, representing imputed interest, is included in “Interest and other expense, net” in the Company’s consolidated statements of operations.

 

Nutrablend Matter

 

On February 27, 2020, Nutrablend, a manufacturer of MusclePharm products, filed an action against MusclePharm in the United States District Court for the Eastern District of California, claiming approximately $3.1 million in allegedly unpaid invoices. These invoices relate to the third and fourth quarter of 2019, and a liability has been recorded in the books for the related periods.

 

On September 25, 2020, the parties successfully mediated the case to a settlement and the Company agreed to (i) pay approximately $3.1 million (“Owed Amount”) in monthly payments (“Monthly Payments”) from September 1, 2020 through June 30, 2023 and (ii) issue monthly purchase orders (“Purchase Orders”) at minimum amounts accepted by Nutrablend.

 

MusclePharm agreed to issue Purchase Orders in a combined total amount of at least (i) $1,500,000 from September 1, 2020 through November 30, 2020; (ii) $1,800,000 from December 1, 2020 through February 28, 2021; (iii) $2,100,000 from March 31, 2021 through May 31, 2021; (iv) $2,100,000 from June 1, 2021 through August 31, 2021; and (v) $1,400,000 from September 1, 2021 through October 30, 2021. Beginning on November 1, 2021, MusclePharm will be required to issue monthly Purchase Orders to Nutrablend in a minimum amount of $700,000 until the Owed Amount is paid in full to Nutrablend. In the event that MusclePharm pays the Owed Amount in full before September 1, 2021, MusclePharm is entitled to a rebate on all completed Purchase Orders. Further, once the monthly payments, and any additional payments that MusclePharm has made on the Owed Amount, reduce the outstanding balance of the Owed Amount to below $2.0 million, MusclePharm is eligible for an extension of a line of credit from Nutrablend in an amount of up to $3.0 million.

 

The Company determined that approximately $1.0 million dollars of the Owed Amount was due within a year, and this amount was recorded in “Accrued and other liabilities” in the consolidated balance sheets. The present value of the remaining Owed Amount that was due after a year was $1.6 million, and the amount was recorded in “Other long term liabilities” in the consolidated balance sheets. The Company made the first payment of $60,000 in September 2020.

 

During the three and nine months ended September 30, 2020, the Company recorded $0.5 million as a gain on the settlement of the liability, and interest expense of $3,000, in the consolidated statements of operations.

 

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Contingencies

 

In the normal course of business or otherwise, the Company may become involved in legal proceedings. The Company will accrue a liability for such matters when it is probable that a liability has been incurred and the amount can be reasonably estimated. When only a range of possible loss can be established, the most probable amount in the range is accrued. If no amount within this range is a better estimate than any other amount within the range, the minimum amount in the range is accrued. The accrual for a litigation loss contingency might include, for example, estimates of potential damages, outside legal fees and other directly related costs expected to be incurred. The Company provides disclosures for material contingencies when there is a reasonable possibility that a loss or an additional loss may be incurred. In assessing whether a loss is a reasonable possibility, the Company may consider the following factors, among others: the nature of the litigation, claim or assessment, available information, opinions or views of legal counsel and other advisors, and the experience gained from similar cases. As of September 30, 2020, the Company was involved in the following material legal proceedings described below.

 

ThermoLife International

 

In January 2016, ThermoLife, a supplier of nitrates to MusclePharm, filed a complaint against the Company in Arizona state court. ThermoLife alleged that the Company failed to meet minimum purchase requirements contained in the parties’ supply agreement. In March 2016, the Company filed counterclaims alleging that ThermoLife’s products were defective. Through orders issued in September and November 2018, the court dismissed MusclePharm’s counterclaims and found that the Company was liable to ThermoLife for failing to meet its minimum purchase requirements.

 

The court held a bench trial on the issue of damages in October 2019, and on December 4, 2019, the court entered judgment in favor of ThermoLife and against the Company in the amount of $1.6 million, comprised of $0.9 million in damages, interest in the amount of $0.3 million and attorneys’ fees and costs in the amount of $0.4 million. The Company recorded $1.6 million in accrued expenses as of December 31, 2018. In the interim, the Company filed an appeal, which is in the process of being briefed, and has posted bonds in the total amount of $0.6 million in order to stay execution on the judgment pending appeal. Of the $0.6 million, $0.25 million (including fees) was paid by Mr. Drexler on behalf of the Company on December 31, 2019. See “Note 7. Debt” for additional information. Subsequent to December 31, 2019, the balance of $0.35 million was secured by a personal guaranty from Mr. Drexler, while the associated fees of $12,500 was paid by the Company.

 

For both the three months ended September 30, 2020 and 2019, interest expense recognized on the awarded damages was $22,000. For both the nine months ended September 30, 2020 and 2019, interest expense recognized on the awarded damages was $66,000.

 

The Company intends to continuously vigorously pursuing its defenses, including on appeal.

 

White Winston Select Asset Fund Series MP-18, LLC et al., v MusclePharm Corp., et al., (Nev. Dist. Ct.; Cal. Superior Court; Colorado Dist. Ct.; Mass. Super. Ct.)

 

On August 21, 2018, White Winston Select Asset Fund Series MP-18, LLC and White Winston Select Asset Fund, LLC (together “White Winston”) initiated a derivative action against MusclePharm and its directors (collectively the “director defendants”). White Winston alleges that the director defendants breached their fiduciary duties by improperly approving the refinancing of three promissory notes issued by MusclePharm to Drexler (the “Amended Note”), in exchange for $18.0 million in loans. White Winston alleges that this refinancing improperly diluted their economic and voting power and constituted an improper distribution in violation of Nevada law. In its complaint, White Winston sought the appointment of a receiver over MusclePharm, a permanent injunction against the exercise of Drexler’s conversion right under the Amended Note, and other unspecified monetary damages. On September 13, 2018, White Winston filed an amended complaint, which added a former MusclePharm executive, as a plaintiff (together with White Winston, the “White Winston Plaintiffs”). On December 9, 2019, the White Winston Plaintiffs filed a Second Amended Complaint, in which they added allegations relating to the resignation of MusclePharm’s auditor, Plante & Moran PLLC (“Plante Moran”). MusclePharm has moved to dismiss the Second Amended Complaint. That motion has not yet been fully briefed.

 

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Along with its complaint, the White Winston Plaintiffs also filed a motion for a temporary restraining order (“TRO”) and preliminary injunction enjoining the exercise of Drexler’s conversion right under the Amended Note. On August 23, 2018, the Nevada district court issued an ex parte TRO. On September 14, 2018, the court let the TRO expire and denied the White Winston Plaintiffs’ request for a preliminary injunction, finding, among other things, that the White Winston Plaintiffs did not show a likelihood of success on the merits of the underlying action and failed to establish irreparable harm. Following the court’s decision, MusclePharm filed a motion seeking to recoup the legal fees and costs it incurred in responding to the preliminary injunction motion. On October 31, 2019, the court awarded MusclePharm $56,000 in fees and costs. The White Winston Plaintiffs have appealed that award.

 

Due to the uncertainty associated with determining our liability, if any, and due to our inability to ascertain with any reasonable degree of likelihood, as of the date of this report, the outcome of the trial, the Company has not recorded an estimate for its potential liability.

 

On June 17, 2019, the White Winston Plaintiffs moved for the appointment of a temporary receiver over MusclePharm, citing Plante Moran’s resignation. The court granted the White Winston Plaintiffs’ request to hold an evidentiary hearing on the motion, but the date for that hearing was not set as of the date hereof. On July 30, 2019, the White Winston Plaintiffs filed an action in the Superior Court of the State of California in and for the County of Los Angeles, seeking access to MusclePharm’s books and records. MusclePharm has answered the petition, asserting as a defense that the request does not have a proper purpose. A trial on the petition has been set for February 25, 2021.

 

The Company intends to vigorously defend these actions.

 

IRS Audit

 

On April 6, 2016, the Internal Revenue Service (“IRS”) selected our 2014 Federal Income Tax Return for audit. As a result of the audit, the IRS proposed certain adjustments with respect to the tax reporting of our former executives’ 2014 restricted stock grants. Due to the Company’s current and historical loss position, the proposed adjustments would have no material impact on the Company’s Federal income tax. On October 5, 2016, the IRS commenced an audit of our employment and withholding tax liability for 2014. The IRS contends that the Company inaccurately reported the value of the restricted stock grants and improperly failed to provide for employment taxes and Federal tax withholding on these grants. In addition, the IRS is proposing certain penalties associated with the Company’s filings. On April 4, 2017, the Company received a “30-day letter” from the IRS asserting back taxes and penalties of approximately $5.3 million, of which $4.4 million related to withholding taxes, specifically, income withholding and Social Security taxes, and $0.9 million related to penalties. Additionally, the IRS asserts that the Company owes information reporting penalties of approximately $2.0 million.

 

The Company’s counsel has submitted a formal protest to the IRS disputing on several grounds all of the proposed adjustments and penalties on the Company’s behalf, and the Company has been pursuing this matter vigorously through the IRS appeal process. An Appeals Conference was held with the IRS in Denver, Colorado on July 31, 2019. At the conference, the Company made substantial arguments challenging the IRS’s claims for employment taxes and penalties. On December 16, 2019, a further Appeals Conference was held with the IRS by telephone. At the telephone conference, the Appeals Officer confirmed that he agreed with the Company’s argument that the failure to deposit penalties should be conceded by the IRS. The failure to deposit penalties total about $2.0 million. Thus, with this concession, the IRS’s claims have been reduced from approximately $7.3 million to about $5.3 million.

 

The remaining issue in dispute in this matter involves the fair market value of restricted stock units in the Company granted to certain former officers (the “Former Officers”) of the Company under Internal Revenue Code § 83. The Company and the IRS disagree as to the value of the restricted stock on the date of the grants, i.e., October 1, 2014. The Company and the IRS have exchanged expert valuation reports on the fair market value of the stock and have had extensive negotiations on this issue. The parties, however, have not been able to reach an agreement with respect to the value of the stock. The IRS has also made parallel claims regarding the restricted stock units against the Former Officers of the Company. The IRS has asserted that the Former Officers received ordinary income from the stock grants, and that they owe additional personal income taxes based on the fair market value of the stock. The Former Officers’ cases, unlike the Company’s case, are pending before the United States Tax Court. In the Tax Court litigation, the Former Officers are challenging the IRS’s determinations regarding the fair market value of the restricted stock grants on October 1, 2014. The Former Officers have separate counsel from the Company. The same IRS Appeals Officer and Revenue Agents assigned to the Company’s case are also involved in the cases for the Former Officers. Throughout the proceedings, the Company has argued to the IRS that it is the Former Officers who are directly and principally liable for the amount of any tax due, and not the Company.

 

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The Former Officers cases were scheduled for trial in Tax Court on March 9, 2020. The trial of the cases was continued by the Court on February 4, 2020. The basis for the continuance was that the IRS and the Former Officers had made progress toward a settlement of the valuation issue involving the grants of the restricted stock. The outcome of these settlement negotiations will be relevant to the Company’s case. The Company is closely monitoring the settlement discussions between the IRS and the Former Officers. The Tax Court has ordered the Former Officers to file status reports regarding progress of their settlement negotiations with the IRS on or before October 22, 2020.

 

Due to the uncertainty associated with determining our liability for the asserted taxes and penalties, if any, and to our inability to ascertain with any reasonable degree of likelihood, as of the date of this report, the outcome of the IRS appeals process, the Company has not recorded an estimate for its potential liability, if any, associated with these taxes.

 

On August 22, 2018, Richard Estalella filed an action against the Company and two other defendants in the Colorado District Court for the County of Denver, seeking damages arising out of the IRS’s assertion of tax liability and penalties relating to the 2014 restricted stock grants. The Company has answered Estalella’s complaint, asserted counterclaims against Estalella for his failure to ensure that all withholding taxes were paid in connection with the 2014 restricted stock grants, and filed cross-claims against a valuation firm named in the action for failing to properly value the 2014 restricted stock grants for tax purposes. The Company, on the other hand, is relying on a separate valuation report prepared by a different valuation firm in its defense to the IRS case. This new valuation firm supports the Company’s position. The Company is waiting on the next steps from the court and will continue to vigorously litigate the matter.

 

4Excelsior Matter

 

On March 18, 2019, 4Excelsior, a manufacturer of MusclePharm products, filed an action against MusclePharm in the Superior Court of the State of California for the County of Los Angeles, claiming approximately $6.2 million in damages relating to allegedly unpaid invoices, as well as approximately $7.8 million in consequential damages. On January 27, 2020, MusclePharm filed a counterclaim against 4Excelsior seeking unidentified damages relating to, among other things, 4Excelsior’s failure to fulfill a purchase order. MusclePharm also moved to strike 4Excelsior’s consequential damages on the grounds that they are unrecoverable under the Uniform Commercial Code. The court denied that motion, and the action has proceeded to discovery. The Company had a liability of $5.7 million and $5.3 million as of September 30, 2020 and December 31, 2019, respectively. This liability, which represents past due invoices (May 2018 through March 2019) plus interest, is recorded in “Accounts Payable” in the consolidated balance sheets. Trial has not yet been set, although a Trial Setting Conference was set for December 17, 2020.

 

On November 16, 2020, the Company and 4Excelsior entered into a stipulation of settlement that provided that the Company would pay to 4Excelsior a total of $4,750,000, in four monthly payments of $70,000, beginning January 5, 2021, and thereafter in monthly payments of $100,000. The parties have not yet entered into a settlement agreement giving effect to the stipulation of settlement.

 

Note 9. Stockholders’ Deficit

 

Common Stock

 

The fair value of all stock issuances is based upon the quoted closing trading price on the date of issuance. Common stock outstanding as of September 30, 2020 includes shares legally outstanding, even if subject to future vesting. For the nine months ended September 30, 2020, the Company had the following transactions related to its common stock, including restricted stock awards (in thousands, except share and per share data):

 

Transaction Type   Quantity (Shares)     Valuation    

Range of

Value per Share

 
Stock issued for advertising services     129,627     $ 117     $ 0.90  
Total     129,627     $ 117     $ 0.90  

 

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For the nine months ended September 30, 2019, the Company had the following transactions related to its common stock including restricted stock awards (in thousands, except share and per share data):

 

Transaction Type   Quantity (Shares)     Valuation ($)     Range of Value
per Share
 
Stock issued for note conversion     16,216,216     $ 18,000     $ 1.11  
Stock issued for consulting services     22,222       10       0.45  
Stock issued in relation to Biozone settlement     150,000       60       0.40  
Restricted stock issued to directors     595,238       250       0.42  
Stock issued for advertising services     647,957       583       0.90  
Total     17,631,633     $ 18,903     $ 0.40 to 1.11  

 

The fair value of all stock issuances above is based upon the quoted closing trading price on the date of issuance. Common stock outstanding as of September 30, 2020 and December 31, 2019 includes shares legally outstanding even if subject to future vesting.

 

Warrants

 

For the nine months ended September 30, 2020 and 2019, the Company did not issue any warrants. As of both September 30, 2020 and 2019, the Company had outstanding warrants of 1,289,378 shares.

 

Treasury Stock

 

For the nine months ended September 30, 2020 and 2019, the Company did not repurchase any shares of its common stock and held 875,621 shares in treasury as of both September 30, 2020 and 2019.

 

Note 10. Stock-Based Compensation

 

Restricted Stock

 

The Company’s stock-based compensation for the nine months ended September 30, 2020 and 2019 consist primarily of restricted stock awards. The activity of restricted stock awards granted to employees, executives and Board members during the nine months ended September 30, 2020 was as follows:

 

    Unvested Restricted Stock Awards  
   

Number of

Shares

   

Weighted Average

Grant Date Fair

Value

 
Unvested balance – December 31, 2019     690,132     $ 0.42  
Granted            
Vested     (568,280 )     0.42  
Forfeited     (121,852 )     0.42  
Unvested balance – September 30, 2020            

 

There were no restricted stock awards granted for both the three and nine months ended September 30, 2020. The Company issued 595,238 shares of restricted stock to its Board members for both the three and nine months ended September 30, 2019. The total fair value of restricted stock awards granted to the Board for both the three and nine months ended September 30, 2019 was $0.3 million.

 

As of September 30, 2020, there was no unrecognized expense for unvested restricted stock awards.

 

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Stock Options

 

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

 

Stock Options Summary Table

 

The following table describes the total options outstanding, granted, exercised, expired and forfeited as of and during the nine months ended September 30, 2020. Shares obtained from the exercise of our options are subject to various trading restrictions.

 

    Options Pursuant to the 2015 Plan     Weighted Average Exercise Price Per Share     Weighted Average Fair Value of Options     Weighted Average Remaining Contractual Life (Years)     Aggregate Intrinsic Value  
Issued and outstanding as of December 31, 2019     171,703     $ 1.89     $ 1.72       6.17        
Granted                              
Exercised                              
Forfeited                              
Issued and outstanding as of September 30, 2020     171,703       1.89       1.72       5.39        
Exercisable as of September 30, 2020     171,703       1.89       1.72       5.39        

 

For the three and nine months ended September 30, 2020 and 2019, the Company recorded no stock compensation expense related to options.

 

Note 11. Net Income (Loss) per Share

 

Basic net income (loss) per share is computed by dividing net income (loss) for the period by the weighted average number of shares of common stock outstanding during each period. The following table sets forth the computation of the Company’s basic and diluted net income (loss) per share for the periods presented (in thousands, except share and per share data):

 

   

For the Three Months

Ended September 30,

   

For the Nine Months

Ended September 30,

 
    2020     2019     2020     2019  
Net income (loss)   $ 678     $ (5,079 )   $ 365     $ (15,468 )
Weighted average common shares used in computing net income (loss) per share, basic     33,008,189       18,527,438       32,746,147       16,443,945  
Potentially diluted securities     16,089,406             16,089,406        
Weighted average common shares used in computing net income (loss) per share, diluted     49,097,595       18,527,438       48,835,553       16,443,945  
Net income (loss) per share, basic   $ 0.02     $ (0.27 )   $ 0.01     $ (0.94 )
Net income (loss) per share, diluted   $ 0.01     $ (0.27 )   $ 0.01     $ (0.94 )

 

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

 

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The Company reported a net income for the three and nine months ended September 30, 2020. The 2020 Refinanced Convertible Note issued to Mr. Drexler was assumed to have been converted on the effective date of July 1, 2020, at a conversion price of $0.17. The resulting shares of 16,089,406, which represented potentially dilutive securities was included in the computations for the diluted net income per share for the three and nine months ended September 30, 2020.

 

There was no dilutive effect for the outstanding awards for the three and nine months ended September 30, 2019, as the Company reported a net loss for both periods. The following securities were excluded from the computations of the diluted net income (loss) per share, as the effect of the securities would be anti-dilutive:

 

    As of September 30,  
    2020     2019  
Stock options     171,703       171,703  
Warrants     1,289,378       1,289,378  
Unvested restricted stock           595,238  
2017 Refinanced Convertible notes          

931,974

 
Total common stock equivalents     1,461,081       2,988,293  

 

Note 12. Income Taxes

 

The Company recorded a tax expense of $20,000 and tax income of $53,000 for the three months ended September 30, 2020 and 2019, respectively, and $64,000 and $89,000 for the nine months ended September 30, 2020 and 2019, respectively.

 

Income taxes are provided for the tax effects of transactions reported in the consolidated financial statements and consist of taxes currently due. Deferred taxes relate to differences between the basis of assets and liabilities for financial and income tax reporting which will be either taxable or deductible when the assets or liabilities are recovered or settled. In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred income tax assets will not be realized. The ultimate realization of deferred income tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred income tax liabilities, projected future taxable income, and tax planning strategies in making this assessment. Based on consideration of these items, management has established a full valuation allowance as it is more likely than not that the tax benefits will not be realized as of September 30, 2020.

 

Utilization of net operating losses and R&D credits may be limited due to potential ownership changes under Section 382 of the IRS Code. The Company will undergo a review of its net operating losses in connection with the conversion of Mr. Drexler’s convertible note in September 2019. It is anticipated that a majority of the net operating losses carry-forwards will be utilized as a result of the conversion. These net operating loss carry-forwards and federal R&D credits have expiration dates starting in 2025 through 2037.

 

Note 13. Segments, Geographical Information

 

The Company’s chief operating decision maker reviews financial information presented on a consolidated basis for purposes of allocating resources and evaluating financial performance. As such, the Company currently has a single reporting segment and operating unit structure. In addition, substantially all long-lived assets are attributable to operations in the U.S. for both periods presented. Revenue, net by geography is based on the Company addresses of the customers. The following table sets forth revenue, net by geographic area (in thousands):

 

    For the Three Months Ended September 30,    

For the Nine Months

Ended September 30,

 
    2020     2019     2020     2019  
Revenue, net:                                
United States   $ 10,072     $ 15,632     $ 35,433     $ 44,798  
International     6,013       5,543       13,876       17,451  
Total revenue, net   $ 16,085     $ 21,175     $ 49,309     $ 62,249  

 

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Note 14. Subsequent Events

 

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

 

Related Party Secured Revolving Promissory Note

 

On October 15, 2020, the Company entered into a secured revolving promissory note (the “Revolving Note”) with Ryan Drexler, the Chief Executive Officer, President and Chairman of the Board of Directors of the Company. Under the terms of the Revolving Note, the Company can borrow up to $3.0 million. The Revolving Note bears interest at the rate of 12% per annum. The use of funds will be used for the purchase of whey protein and other general corporate purposes. Both the outstanding principal, if any, and all accrued interest under the Revolving Note are due on March 31, 2021. The Company may prepay the Revolving Note by giving Mr. Drexler one days’ advance written notice. The Revolving Note contains customary events of default, including, among others, the failure by the Company to make a payment of principal or interest when due. Following an event of default, Mr. Drexler is entitled to accelerate the entire indebtedness under the Revolving Note. The Revolving Note also contains customary restrictions on the ability of the Company to, among other things, grant liens or incur indebtedness other than certain obligations incurred in the ordinary course of business. The restrictions are also subject to certain additional qualifications and carveouts, as set forth in the Revolving Note. The Revolving Note is subordinated to certain other indebtedness of the Company held by Prestige and Crossroads. In connection with the Revolving Note, the Company and Mr. Drexler entered into a fifth amended and restated security agreement dated October 15, 2020 (the “Security Agreement”) pursuant to which the Revolving Note is secured by all of the assets and properties of the Company and its subsidiaries whether tangible or intangible.

 

There are no events subsequent to September 30, 2020 that have not been described in the accompanying footnotes.

 

28

 

 

ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and related notes included elsewhere in this Quarterly Report on Form 10-Q (the “Form 10-Q”), and with our audited consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2019 (the “2019 Form 10-K”), as filed with the Securities and Exchange Commission on August 25, 2020. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed below. Factors that could cause or contribute to such differences include, but are not limited to, those identified below and those discussed in the section entitled “Risk Factors” included elsewhere in this Form 10-Q. Except as otherwise indicated herein, the terms “MusclePharm,” “Company,” “we,” “our” and “us” refer to MusclePharm Corporation and its subsidiaries.

 

Overview

 

The Company is a scientifically-driven, performance lifestyle company that develops, markets and distributes branded sports nutrition products and nutritional supplements that are manufactured by the Company’s co-manufacturers. The Company offers a broad range of performance powders, bars and capsules, which seek to help athletes of all types achieve a heightened level of performance and satisfaction. Our portfolio consists of sports nutrition staples, such as protein powders and bars, and pre-workout powders, as well as well-known supplements like creatine, BCAA, fish oil, a multi-vitamin and more. These products fall under the globally-recognized brands, MusclePharm® and FitMiss®, which are marketed and sold globally. Our corporate headquarters are located in Calabasas, CA.

 

Our offerings are clinically developed through a six-stage research process, and all of our manufactured products are rigorously vetted for banned substances by the leading quality assurance program, Informed-Choice. While we initially drove growth in the Specialty retail channel, in recent years we have expanded our focus to drive sales and retailer growth across leading e-commerce, Food Drug & Mass, and Club retail channels, including Amazon, Costco, Kroger, Walgreens, 7-Eleven, and many others.

 

COVID-19

 

Our results of operations are affected by economic conditions, including macroeconomic conditions and levels of business confidence. There continues to be significant volatility and economic uncertainty in many markets and the ongoing COVID-19 pandemic has increased that level of volatility and uncertainty and has created economic disruption. Beginning in April 2020, the Company began to experience a slowdown, which has continued to date, in sales from its retail customers, including its largest customer. This decline has been partially offset by a growth in sales to our largest online customer, although there can be no assurances that such growth will continue, or that the Company will have the financial resources to produce the additional quantities required by this customer. We are actively managing our business to respond to the impact.

 

As COVID-19 infections have been reported throughout the United States, certain federal, state and local governmental authorities have issued stay-at-home orders, proclamations and/or directives aimed at minimizing the spread of the infection. Additionally, more restrictive proclamations and/or directives may be issued in the future.

 

The ultimate impact of the COVID-19 pandemic on the Company’s operations is unknown and will depend on future developments, which are highly uncertain and cannot be predicted with confidence, including the duration of the COVID-19 outbreak, new information which may emerge concerning the severity of the COVID-19 pandemic, and any additional preventative and protective actions that governments, or the Company, may direct, which may result in an extended period of continued business disruption, reduced customer traffic and reduced operations. Any resulting financial impact cannot be reasonably estimated at this time but may have a material impact on our business, financial condition and results of operations.

 

While revenue, net is down for 2020 compared to 2019, there are multiple factors contributing to this decline. Our revenue for 2020 is down primarily as a result of a reduction in promotional discounts, resulting in lower sales volume with certain customers, and to a lesser degree, due to the impact of COVID-19, resulting in a decline in our Specialty, International, and Food, Drug, and Mass (“FDM”) sales. Management continues to monitor the business environment for any significant changes that could impact the Company’s operations. The Company has taken proactive steps to manage costs and discretionary spending, such as remote working and reducing facility related expense.

 

29

 

 

Results of Operations

 

Comparison of the Three Months Ended September 30, 2020 to the Three Months Ended September 30, 2019

 

($ in thousands)  

Three Months Ended

September 30

             
    2020     2019     $ Change     % Change  
                   
Revenue, net   $ 16,085     $ 21,175     $ (5,090 )     (24 )%
Cost of revenue     11,073       19,649       (8,576 )     (44 )
Gross profit     5,012       1,526       3,486       228  
Operating expenses:                                
Advertising and promotion     49       574       (525 )     (91 )
Salaries and benefits     1,538       2,070       (532 )     (26 )
Selling, general and administrative     1,737       2,127       (390 )     (18 )
Professional fees     885       842       43       5  
Impairment of operating lease right-of-use assets     167             167       100  
Total operating expenses     4,376       5,613       (1,237 )     (22 )
Income (loss) from operations     636       (4,087 )     4,723       (116 )
Other income (expense):                                
Loss on settlement obligation           (16 )     16       (100 )
Gain on settlement of payables     518             518       100  
Interest and other expense, net     (456 )     (923 )     467       (51 )
Income (loss) before provision for income taxes     698       (5,026 )     5,723       (114 )
Provision for income taxes     20       53       (33 )     (62 )
Net income (loss)   $ 678     $ (5,079 )   $ 5,757       (113 )%

 

30

 

 

Comparison of the Nine Months Ended September 30, 2020 to the Nine Months Ended September 30, 2019

 

   

Nine Months Ended

September 30

             
($ in thousands)   2020     2019     $ Change     % Change  
                   
Revenue, net   $ 49,309     $ 62,249     $ (12,940 )     (21 )%
Cost of revenue     34,504       56,077       (21,573 )     (38 )
Gross profit     14,805       6,172       8,633       140  
Operating expenses:                                
Advertising and promotion     362       2,134       (1,772 )     (83 )
Salaries and benefits     4,993       5,844       (851 )     (15 )
Selling, general and administrative     5,455       7,658       (2,203 )     (29 )
Professional fees     2,291       2,783       (492 )     (18 )
Impairment of operating lease right-of-use asset     167             167       100  
Total operating expenses     13,268       18,419       (5,151 )     (28 )
Income (loss) from operations     1,537       (12,247 )     13,784       (113 )
Other income (expense):                                
Loss on settlement obligation     (87 )     (125 )     38       (30 )
Gain on settlement of payables     518             518       100  
Interest and other expense, net     (1,539 )     (3,007 )     1,468       (49 )
Income (loss) before provision for income taxes     429       (15,379 )     15,808       (103 )
Provision for income taxes     64       89       (25 )     (28 )
Net income (loss)   $ 365     $ (15,468 )   $ 15,833       (102 )%

 

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The following table presents our operating results as a percentage of revenue, net for the periods presented:

 

   

For the Three Months

Ended September 30,

    For the Nine Months Ended September 30,  
    2020     2019     2020     2019  
Revenue, net     100 %     100 %     100 %     100 %
Cost of revenue     69       93       70       90  
Gross profit     31       7       30       10  
Operating expenses:                                
Advertising and promotion           3       1       3  
Salaries and benefits     10       10       10       9  
Selling, general and administrative     11       10       11       12  
Professional fees     5       4       5       4  
Impairment of operating lease right-of-use asset     1                    
Total operating expenses     27       27       27       28  
Income (loss) from operations     4       (20 )     3       (18 )
Other income (expense):                                
Loss on settlement obligation           (1 )            
Gain on settlement of payables     3             1        
Interest and other expense, net     (3 )     (2 )     (3 )     (5 )
Income (loss) before provision for income taxes     4       (23 )     1       (23 )
Provision for income taxes                        
Net income (loss)     4       (23 )%     1       (23 )%

 

Revenue, net

 

We derive our revenue through the sales of our various branded nutritional supplements. Revenue is recognized when control of a promised good is transferred to a customer in an amount that reflects the consideration that the Company expects to be entitled to in exchange for that good. This usually occurs when finished goods are delivered to the Company’s customers or when finished goods are picked up by a customer or a customer’s carrier.

 

The MusclePharm brands are marketed across major global retail distribution channels. Below is a table of revenue, net by our major distribution channel:

 

    For the Three Months Ended September 30,  
    2020     % of
Total
    2019     % of
Total
 
Distribution Channel                                
Specialty   $ 4,770       30 %   $ 9,655       45 %
International     6,013       37 %     5,543       27 %
FDM     5,302       33 %     5,925       28 %
Total   $ 16,085       100 %   $ 21,175       100 %

 

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    For the Nine Months Ended September 30,  
    2020     % of
Total
    2019     % of
Total
 
Distribution Channel                                
Specialty   $ 21,739       44 %   $ 27,966       45 %
International     13,876       28 %     17,451       28 %
FDM     13,694       28 %     16,832       27 %
Total   $ 49,309       100 %   $ 62,249       100 %

 

Revenue, net reflects the transaction prices for contracts, which includes products shipped at selling list prices reduced by variable consideration. We record sales incentives as a direct reduction of revenue for various discounts provided to our customers consisting primarily of volume incentive rebates and promotional related credits. We accrue for sales discounts over the period they are earned. Sales discounts are a significant part of our marketing plan to our customers as they help drive increased sales and brand awareness with end users through promotions that we support through our distributors and re-sellers.

 

For the three months ended September 30, 2020, the increase in international sales is primarily due to notable sales with Coupang Direct Import (approximately 5% of revenue, net), a customer since March of 2020, which has been experiencing substantial organic growth. For the nine months ended September 30, 2020, the reductions in sales from international customers related primarily to lower sales volumes due to a reduction in discounts offered to these customers.

 

For the three and nine months ended September 30, 2020, the decrease in Specialty is primarily due to lower sales volumes due to a reduction in discounts offered to these customers, in particular iHerb, who represented 18% and 16% of revenue, net for the three and nine months ended September 30, 2019, respectively, and less than 10% of revenue, net for the same periods in 2020.

 

For the three months ended September 30, 2020, the decrease in FDM is primarily due to a decrease in sales to BJ’s Wholesale Club. During the nine months ended September 30, 2020, the decrease in FDM is primarily due to a decrease in domestic sales to Costco, the result of a reduction in promotional sales in 2020 as compared to 2019, and the impact of Covid-19, which impacted several Brick-and-Mortar stores. During the nine months ended September 30, 2020, Costco’s net domestic sales decreased $2.1 million, the result of a reduction in promotional discounts of 36% in 2020 as compared to 2019, and the impact of Covid-19. During the three months ended September 30, 2020 and 2019, Costco accounted for approximately 46% and 34% of our revenue, net respectively. During the nine months ended September 30, 2020 and 2019, Costco accounted for approximately 37% and 33% of our revenue, net, respectively.

 

Revenue, net decreased $5.1 million, or 24%, to $16.1 million for the three months ended September 30, 2020, compared to $21.2 million for the same period in 2019. Revenue, net for the three months ended September 30, 2020 decreased primarily due to reduced domestic sales of $5.6 million, which was partially offset by increased international sales of $0.5 million. Discounts and sales allowances decreased to 20% of gross revenue, or $4.1 million, for the three months ended September 30, 2020 from 25% of gross revenue, or $7.0 million for the same period in 2019. Discounts and sales allowance will fluctuate based on customer mix and changes in discretionary promotional activity.

 

Revenue, net decreased $12.9 million, or 21%, to $49.3 million for the nine months ended September 30, 2020, compared to $62.2 million for the same period in 2019. Revenue, net for the nine months ended September 30, 2020 decreased due to reduction in our international sales of $3.6 million, together with reduced domestic sales of $9.3 million. Discounts and sales allowances decreased to 19% of gross revenue, or $11.7 million, for the nine months ended September 30, 2020 from 27% of gross revenue, or $22.5 million for the same period in 2019. Discounts and sales allowance will fluctuate based on customer mix and changes in discretionary promotional activity.

 

We expect that our discounts and allowances will continue to decrease, overall and as a percentage of revenue as we reduce certain discretionary promotional activity. We have not experienced a commensurate increase in revenues as a result of higher discretionary promotional activity.

 

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Cost of Revenue and Gross Profit

 

Cost of revenue for MusclePharm products is directly related to the production, manufacturing, and freight-in of the related products purchased from third party contract manufacturers. We use contract manufacturers to drop ship products directly to our customers, as well as ship product to our warehouse in Tennessee. The Tennessee warehouse is operated with our equipment and employees, and we own the related inventory.

 

Our gross profit fluctuates due to several factors, including sales incentives, new product introductions and upgrades to existing product lines, changes in customer and product mixes, the mix of product demand, shipment volumes, our product costs, pricing, and inventory write-downs.

 

Costs of revenue decreased 44% to $11.1 million for the three months ended September 30, 2020, compared to $19.6 million for the same period in 2019. This decrease was due, in part, to lower revenues, with gross revenue for the three months ended September 30, 2020 decreasing 28% compared to the same period in 2019. In addition, during the three months ended September 30, 2020, there was a significant decrease in protein prices compared to the prior year period, further contributing to lower costs of revenue. Gross profit for the three months ended September 30, 2020 increased $3.5 million to $5.0 million compared to $1.5 million for the same period in 2019. Gross profit was 31% of revenue, net for the three months ended September 30, 2020 compared to 7% of revenue, net for the same period in 2019. Positively impacting the gross profit percentage was a decrease of 5% in promotional discounts, as a percentage of revenue, net, and a decrease in protein prices for the three months ended September 30, 2020 compared to the three months ended September 30, 2019, further contributing to the gross profit percentage increase.

 

Costs of revenue decreased 38% to $34.5 million for the nine months ended September 30, 2020, compared to $56.1 million for the same period in 2019. This decrease was due, in part, to lower revenues, with gross revenue for the nine months ended September 30, 2020 decreasing 28% compared to the same period in 2019. In addition, during the nine months ended September 30, 2020, there was a significant decrease in protein prices compared to the prior year period, further contributing to lower costs of revenue. Gross profit for the nine months ended September 30, 2020 increased $8.6 million to $14.8 million compared to $6.2 million for the same period in 2019. Gross profit was 30% of revenue, net for the nine months ended September 30, 2020 compared to 10% for the same period in 2019. Positively impacting the gross profit percentage was a decrease of 8% in promotional discounts, as a percentage of revenue, net, and a decrease in protein prices for the nine months ended September 30, 2020 compared to the nine months ended September 30, 2019, further contributing to the gross profit percentage increase.

 

Operating Expenses

 

Advertising and Promotion

 

Our advertising and promotion expenses consist primarily of digital, print and media advertising, athletic endorsements and sponsorships, promotional giveaways, in store product demonstrations, broker fees, in store product displays and trade show events.

 

Advertising and promotion expense decreased 91% to $0.05 million for the three months ended September 30, 2020, compared to the same period in 2019, when advertising and promotion expense was $0.57 million. The decrease was primarily due to reduced other advertising (including reduced club demonstrations and sports marketing), reduced print advertising and reduced giveaways of $0.1 million.

 

Advertising and promotion expense decreased 83% to $0.4 million for the nine months ended September 30, 2020, compared to the same period in 2019, when advertising and promotion expense was $2.1 million. The decrease for the nine months ended September 30, 2019 primarily included a reduction in giveaways, sponsorships, trade shows, print advertising and club demonstrations.

 

The reductions in both comparative periods were all made in an effort to reduce overall spending as we shift our promotional costs, in part, from general branding and product awareness to acquiring customers and driving sales from existing customers.

 

34

 

 

Salaries and Benefits

 

Salaries and benefits consist primarily of salaries, bonuses, benefits, and stock-based compensation. Personnel costs are a significant component of our operating expenses.

 

For the three months ended September 30, 2020, salaries and benefits expense decreased 26% to $1.5 million, compared to $2.1 million for the same period in 2019.

 

For the nine months ended September 30, 2020, salaries and benefits expense decreased 15% to $5.0 million, compared to $5.8 million for the same period in 2019.

 

For the three and nine months ended September 30, 2020, the reductions were primarily due to headcount reductions and termination of higher income employees, such as Mr. Casutto, a former executive.

 

Selling, General and Administrative

 

Our selling, general and administrative expenses consist primarily of freight costs, research and development, depreciation and amortization, information technology equipment and network costs, facilities related expenses, director’s fees, which include both cash and stock-based compensation, insurance, rental expenses related to equipment leases, supplies, legal settlement costs, and other corporate expenses.

 

For the three months ended September 30, 2020, selling, general and administrative expenses decreased 18% to $1.7 million compared to the same period in 2019, when selling, general and administrative expenses were $2.1 million. The decrease during the three months ended September 30, 2020 compared to the same period in 2019 were primarily due to lower freight expenses of $0.3 million (due to changes in carrier and shipping locations and lower revenues), together with lower travel expenses, depreciation, research and development, office expenses and other general expenses, offset by increased bad debts, with a combined reduction of $0.1 million. These reductions are in line with the Company’s cost reduction strategy.

 

For the nine months ended September 30, 2020, selling, general and administrative expenses decreased 29% to $5.5 million, compared to the same period in 2019, when selling, general and administrative expenses were $7.7 million. The decrease during the nine months ended September 30, 2019 compared to the nine months ended September 30, 2019 were primarily due to lower freight expenses of $1.2 million (due to changes in carrier and shipping locations and lower revenues), together with reduced travel expenses, depreciation, research and development, office expenses and other general expenses, offset by increased bad debt, with a combined reduction of $1.0 million. These reductions are in line with the Company’s cost reduction strategy.

 

Professional Fees

 

Professional fees consist primarily of legal fees, accounting and audit fees, consulting fees, which includes both cash and stock-based compensation, and investor relations costs.

 

For the three months ended September 30, 2020 and 2019, professional fees were relatively flat at $0.9 million and $0.8 million, respectively.

 

For the nine months ended September 30, 2020, professional fees decreased 18% to $2.3 million, compared to the same period in 2019 when professional fees were $2.8 million. The decrease is primarily due to reduced legal fees of $1.1 million as the Company has made progress on winding down various legal matters. These reduced legal fees have been offset in part by increased accounting fees, resulting from the additional audit and accounting work performed which relate to the restated financial statements filed with the SEC on August 25, 2020.

 

35

 

 

Interest and other income (expense), net

 

For the three and nine months ended September 30, 2020 and 2019, “Interest and other income (expense), net” consisted of the following (in thousands):

 

   

For the

Three Months

Ended September 30,

   

For the

Nine Months

Ended September 30,

 
    2020     2019     2020     2019  
Interest and other expense, net:                                
Interest expense, related party   $ (76 )   $ (458 )   $ (228 )   $ (1,528 )
Interest expense, related party debt discount           (30 )           (60 )
Interest expense, other     (249 )     (162 )     (581 )     (619 )
Interest expense, secured borrowing arrangement     (312 )     (335 )     (1,060 )     (840 )
Foreign currency transaction loss     (2 )     (11 )     (20 )     (224 )
Other     183       73       350       264  
Total interest and other expense, net   $ (456 )   $ (923 )   $ (1,539 )   $ (3,007 )

 

“Other” primarily includes sublease income and gain on disposal of fixed assets.

 

Net interest and other expense, net for the three months ended September 30, 2020 decreased 51%, or $0.5 million, compared to the same period in 2019. The decrease is primarily related to increased other income due to a gain on disposal of fixed assets of $0.1 million, together with lower interest of $0.4 million related to the Refinanced Convertible Note, of which the principal balance of $18.0 million was converted to common stock in September 2019. This decrease was partially offset by increased settlement interest and factoring and financing fees on the secured borrowing arrangement.

 

Net interest and other expense, net for the nine months ended September 30, 2020 decreased 49%, or $1.5 million, compared to the same period in 2019. The decrease is primarily related to increased other income due to a gain on disposal of fixed assets of $0.1 million, a decreased foreign currency transaction loss of $0.2 million, and lower interest of $1.2 million related to the Refinanced Convertible Note, of which the principal balance of $18.0 million was converted to common stock in September 2019. This decrease was partially offset by increased factoring and financing fees on the secured borrowing arrangement.

 

Provision for Income Taxes

 

Provision for income taxes consists primarily of federal and state income taxes in the U.S. and income taxes in foreign jurisdictions in which we conduct business. Due to uncertainty as to the realization of benefits from our deferred tax assets, including net operating loss carry-forwards, research and development and other tax credits, we have a full valuation allowance reserved against such assets. We expect to maintain this full valuation allowance at least in the near term.

 

Liquidity and Capital Resources

 

The Company has incurred significant losses and experienced negative cash flows since inception. As of September 30, 2020, the Company had cash of $1.1 million, a decline of $0.4 million from the December 31, 2019 balance of $1.5 million. As of September 30, 2020, we had a working capital deficit of $25.4 million, a stockholders’ deficit of $27.3 million and an accumulated deficit of $195.5 million resulting from recurring losses from operations. As a result of our history of losses and financial condition, there is substantial doubt about our ability to continue as a going concern.

 

The ability to continue as a going concern is dependent upon us generating profitable operations in the future and/or obtaining the necessary financing to meet our obligations and repay our liabilities arising from normal business operations when they come due. Management is evaluating different strategies to obtain financing to fund our expenses and achieve a level of revenue adequate to support our current cost structure. Financing strategies may include, but are not limited to, private placements of capital stock, debt borrowings, partnerships and/or collaborations.

 

36

 

 

In response to the Company’s continued net loss in 2019, management implemented the following measures to improve gross profit:

 

  1) reduced or eliminated sales to low or negative margin customers;
  2) reduced product discounts and promotional activity;
  3) implemented a more aggressive SKU reduction;

 

formed a pricing committee to review all orders to better align gross profit expectations with product availability.

 

As a result of these measures, as well as a reduction in protein prices, the Company realized increased gross profit in the fourth quarter of 2019, a trend which continued into the third quarter of 2020. Beginning in April 2020, the Company experienced a slowdown, which has continued to date, in sales from its retail customers, including its largest customer. This decline has been partially offset by a growth in sales to our largest online customers, although there can be no assurances that such growth will continue, or that the Company will have the financial resources to produce the additional quantities required by these customers. In 2020, the Company also negotiated lower costs of goods sold with our co-manufacturers. Management believes reductions in operating costs, and continued focus on gross profit, primarily pricing controls and a reduction in product discounts and promotional activity with the Company’s customers, will allow us to ultimately achieve profitability; however, the Company can give no assurances that this will occur.

 

Our net consolidated cash flows are as follows (in thousands):

 

   

For the Nine Months

Ended September 30,

 
    2020     2019  
Consolidated Statements of Cash Flows Data:                
Net cash provided by (used in) operating activities   $ 2,570     $ (4,234 )
Net cash provided by (used in) investing activities     216       (13 )
Net cash (used in) provided by financing activities     (3,233 )     3,466  
Effect of exchange rate changes on cash           7  
Net change in cash   $ (447 )   $ (774 )

 

Operating Activities

 

Our cash used in operating activities is driven primarily by sales of our products and vendor provided credit. Our primary uses of cash from operating activities have been for inventory purchases, advertising and promotion expenses, personnel-related expenditures, manufacturing costs, professional fees, costs related to our facilities, and legal fees. Our cash flows from operating activities will continue to be affected principally by the results of operations and the extent to which we increase spending on personnel expenditures, sales and marketing activities, and our working capital requirements.

 

Our operating cash inflows were $6.8 million higher for the nine months ended September 30, 2020 compared to the same period in 2019. The variance includes a source of cash provided by a current period net income, which reduced the prior year net loss by $15.8 million, offset by a use of cash due to a change in non-cash adjustments of $1.8 million. This variance finally includes a use of cash due to a change in net operating assets and liabilities of $7.2 million. The change in net operating assets and liabilities in the current period is the result of an increase in our accounts receivable balance of $0.6 million, a decrease in our inventory balance of $3.3 million, a decrease in other assets of $0.4 million and a decrease in our accounts payable and accrued liabilities balance of $1.3 million, due to the paydown of vendor invoices. During the nine months ended September 30, 2019, the change in net operating assets and liabilities included a decrease in our accounts receivable balance of $1.1 million, a decrease in our inventory balance of $6.2 million, an increase in our accounts payable and accrued liabilities balance of $1.7 million, and a decrease in prepaid expenses and other assets of $0.3 million which together provided a source of cash flow.

 

37

 

 

Investing Activities

 

During the nine months ended September 30, 2020, we received $0.2 million from the disposal of assets held at our Tennessee warehouse and Burbank locations. During the nine months ended September 30, 2019, we used $13,000 for the purchase of equipment.

 

Financing Activities

 

Cash used in financing activities was $3.2 million for the nine months ended September 30, 2020 and cash provided by financing activities was $3.5 million for the nine months ended September 30, 2019. During the nine months ended September 30, 2020, we used $2.5 million to repay the line of credit and received $1.0 million as part of the Paycheck Protection Program. Cash provided from the secured borrowing arrangement was offset by repayments of outstanding debt, resulting in a net cash used of $1.5 million. During the nine months ended September 30, 2019, we received $1.5 million proceeds from the line of credit; further, cash provided from the secured borrowing arrangement was offset by repayments of outstanding debt, resulting in net proceeds of $2.1 million.

 

To manage cash flow, we have entered into numerous financing arrangements outlined below.

 

Indebtedness Agreements

 

Related-Party Refinanced Convertible Note

 

On November 3, 2017, the Company entered into the refinancing with Mr. Ryan Drexler, the Company’s Chairman of the Board of Directors, Chief Executive Officer and President (the “Refinancing”). As part of the Refinancing, the Company issued to Mr. Drexler an amended and restated convertible secured promissory note (the “Refinanced Convertible Note”) in the original principal amount of $18.0 million, which amended and restated (i) a convertible secured promissory note dated as of December 7, 2015, amended as of January 14, 2017, in the original principal amount of $6.0 million with an interest rate of 8% prior to the amendment and 10% following the amendment (the “2015 Convertible Note”), (ii) a convertible secured promissory note dated as of November 8, 2016, in the original principal amount of $11.0 million with an interest rate of 10% (the “2016 Convertible Note”), and (iii) a secured demand promissory note dated as of July 27, 2017, in the original principal amount of $1.0 million with an interest rate of 15% (the “2017 Note”, and together with the 2015 Convertible Note and the 2016 Convertible Note, collectively, the “Prior Notes”). The due date of the 2015 Convertible Note and the 2016 Convertible Note was November 8, 2017. The 2017 Note was due on demand.

 

The interest rate on the $18.0 million Refinanced Convertible Note was 12% per annum, and interest payments were due on the last day of each quarter. At the Company’s option (as determined by its independent directors), the Company could repay up to one-sixth of any interest payment by either adding such amount to the principal amount of the note or by converting such interest amount into an equivalent amount of the Company’s common stock. Any interest not paid when due would be capitalized and added to the principal amount of the Refinanced Convertible Note and bear interest on the applicable interest payment date along with all other unpaid principal, capitalized interest, and other capitalized obligations. Both the principal and the interest under the Refinanced Convertible Note were due on December 31, 2019, unless converted earlier. Mr. Drexler could convert the outstanding principal and accrued interest into shares of the Company’s common stock at a conversion price of $1.11 per share at any time. The Company could prepay the Refinanced Convertible Note by giving Mr. Drexler between 15 and 60 days’ notice depending upon the specific circumstances, subject to Mr. Drexler’s conversion right.

 

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

 

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

 

On September 16, 2019, Mr. Ryan Drexler delivered a notice to the Company and its independent directors of his election to convert, effective as of September 16, 2019 (the “Notice Date”), $18.0 million of the amount outstanding under that certain Amended and Restated Convertible Secured Promissory Note, dated as of November 8, 2017 (the “Note”), issued by the Company to Mr. Drexler, into shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at a conversion price of $1.11 per share, pursuant to the terms and conditions of the Note (the “Partial Conversion”). As of the Notice Date, the total amount outstanding under the Note (including principal and accrued and unpaid interest) was equal to $19.3 million. Pursuant to the terms of the Note, the Company instructed the transfer agent to issue to Mr. Drexler 16,216,216 shares (the “Shares”) of its Common Stock in respect of the Partial Conversion.

 

On October 4, 2019, the Company entered into a secured revolving promissory note (the “Revolving Note”) with Mr. Drexler. Under the terms of the Revolving Note, the Company can borrow up to $3.0 million. The Revolving Note bears interest at the rate of 12% annually. The use of funds will be solely for the purchase of whey protein to be used in the manufacturing of MusclePharm products. The Company may prepay the Revolving Note by giving Mr. Drexler one days’ written notice. The Revolving Note contains customary events of default, including, among others, the failure by the Company to make a payment of principal or interest when due. Following an event of default, Mr. Drexler is entitled to accelerate the entire indebtedness under the Revolving Note. The Revolving Note also contains customary restrictions on the ability of the Company to, among other things, grant liens or incur indebtedness other than certain obligations incurred in the ordinary course of business. The restrictions are also subject to certain additional qualifications and carveouts. In connection with the Revolving Note, the Company and Mr. Drexler entered into a security agreement dated October 4, 2019 pursuant to which the Revolving Note is secured by all of the assets and properties of the Company and its subsidiaries whether tangible or intangible.

 

On December 27, 2019, the Company entered into a collateral receipt and security agreement with Mr. Drexler, pursuant to which Mr. Drexler agreed to post bond relating to the judgment ruled against the Company in connection with the litigation between the Company and ThermoLife, pending the appeal. The amount paid by Mr. Drexler on behalf of the Company, including fees, was $0.3 million.

 

On August 21, 2020, the Company entered into a refinancing agreement with Mr. Ryan Drexler, the Company’s Chairman of the Board of Directors, Chief Executive Officer and President (the “2020 Refinancing”), with an effective date of July 1, 2020. As part of the 2020 Refinancing, the Company issued to Mr. Drexler an amended and restated convertible secured promissory note (the 2020 “Refinanced Convertible Note”) in the original principal amount of $2,735,199, which amended and restated (i) a convertible secured promissory note dated as of November 8, 2017, $1,134,483 of which was outstanding as of July 1, 2020 (ii) a collateral receipt and security agreement with Mr. Drexler dated as of December 27, 2019, $252,500 of which was outstanding as of July 1, 2020, and (iii) a secured revolving promissory note dated as of October 4, 2019, $1,348,216 of which was outstanding as of July 1, 2020. The $2.7 million 2020 Refinanced Convertible Note bears interest at the rate of 12% per annum.

 

The 2020 Refinanced Convertible Note contains customary restrictions on the ability of the Company to, among other things, grant liens or incur indebtedness other than certain obligations incurred in the ordinary course of business. The restrictions are also subject to certain additional qualifications and carveouts, as set forth in the 2020 Refinanced Convertible Note. The 2020 Refinanced Convertible Note is subordinated to certain other indebtedness of the Company held by Prestige and Crossroads. The Company may prepay the 2020 Refinanced Convertible Note by giving Mr. Drexler between 15 and 60 days’ notice depending upon the specific circumstances, subject to Mr. Drexler’s conversion right. Mr. Drexler may convert the outstanding principal and accrued interest into shares of the Company’s common stock at a conversion price equal to or greater than (i) the closing price per share of the common stock on the last business day immediately preceding November 1, 2020 or (ii) $0.17.

 

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All outstanding principal and accrued but unpaid interest under the 2020 Refinanced Convertible Note were due and payable on November 1, 2020. The Note is currently in default and the Company is in negotiations with Mr. Drexler to either convert the 2020 Refinanced Convertible Note or amend the 2020 Refinancing by the end of November 2020. Interest accrued but unpaid will be capitalized on the due date and added to the principal amount of the 2020 Refinanced Convertible Note.

 

For the three months ended September 30, 2020 and 2019, interest expense, including the amortization of debt discount, related to the related party convertible notes was $80,000 and $0.5 million, respectively. During the three months ended September 30, 2020, no interest was paid in cash to Mr. Drexler. During the three months ended September 30, 2019, $0.4 million in interest was paid in cash to Mr. Drexler.

 

For the nine months ended September 30, 2020 and 2019, interest expense, including the amortization of debt discount, related to the related party convertible notes was $0.2 million and $1.6 million, respectively. During the nine months ended September 30, 2020, no interest was paid in cash to Mr. Drexler. During the nine months ended September 30, 2019, $0.8 million in interest was paid in cash to Mr. Drexler.

 

Line of Credit - Inventory Financing

 

On October 6, 2017, the Company entered into a Security Agreement with Crossroads. Pursuant to the Security Agreement, the Company may borrow up to 70% of its Inventory Cost or up to 75% of Net Orderly Liquidation Value (each as defined in the Security Agreement), up to a maximum amount of $3.0 million at an interest rate of 1.5% per month, subject to a minimum monthly fee of $22,500. Subsequent to the end of 2017, the maximum amount was increased to $4.0 million. The term is extended automatically in one-year increments, unless earlier terminated pursuant to the terms of the Security Agreement. The Security Agreement contains customary events of default, including, among others, the failure to make payments on amounts owed when due, default under any other material agreement or the departure of Mr. Drexler. The Security Agreement also contains customary restrictions on the ability of the Company to, among other things, grant liens, incur debt and transfer assets. Under the Security Agreement, the Company agreed to grant Crossroads a security interest in all our present and future accounts, chattel paper, goods (including inventory and equipment), instruments, investment property, documents, general intangibles, intangibles, letter of credit rights, commercial tort claims, deposit accounts, supporting obligations, documents, records and the proceeds thereof. The Security Agreement has second priority lien on the Company’s assets and is subordinated to the Company’s indebtedness held by Prestige. As of September 30, 2020, and December 31, 2019, we owed Crossroads $0.5 million and $3.0 million, respectively.

 

On April 1, 2019, the Company and Crossroads amended the terms of the agreement. The agreement was extended until March 31, 2020, the rate was modified to 1.33% per month, and increased the amount the Company can borrow from $3.0 million to $4.0 million.

 

On February 26, 2020, the Company and Crossroads amended the terms of the agreement. The agreement was extended until April 1, 2021 and the amount the Company can borrow was decreased from $4.0 million to $3.0 million

 

Secured Borrowing Arrangement

 

In January 2016, the Company entered into a Purchase and Sale Agreement (the “Purchase and Sale Agreement”) with Prestige, pursuant to which the Company agreed to sell and assign and Prestige agreed to buy and accept, certain accounts receivable owed to the Company (“Accounts”). Under the terms of the Purchase and Sale Agreement, upon the receipt and acceptance of each assignment of Accounts, Prestige will pay the Company 80% of the net face amount of the assigned Accounts, up to a maximum total borrowing of $12.5 million subject to sufficient amounts of accounts receivable to secure the loan. The remaining 20% will be paid to the Company upon collection of the assigned Accounts, less any chargebacks (including chargebacks for any customer amounts that remain outstanding for over 90 days), disputes, or other amounts due to Prestige. Prestige’s purchase of the assigned Accounts from the Company will be at a discount fee which varies based on the number of days outstanding from the assignment of Accounts to collection of the assigned Accounts. In addition, the Company granted Prestige a continuing security interest in and first priority lien upon all accounts receivable, inventory, fixed assets, general intangibles, and other assets. Prestige will have no recourse against the Company if payments are not made due to the insolvency of an account debtor within 90 days of invoice date, with the exception of international and certain domestic customers. As of September 30, 2020 and December 31, 2019, the Company had outstanding borrowings of approximately $3.0 million and $4.4 million, respectively.

 

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During the three months ended September 30, 2020 and 2019, the Company assigned to Prestige accounts with an aggregate face amount of approximately $14.6 million and $14.8 million, respectively, for which Prestige paid to the Company approximately $11.6 million and $11.9 million, respectively, in cash. During the three months ended September 30, 2020 and 2019, $11.6 million and $12.5 million was repaid to Prestige, respectively, including fees and interest.

 

During the nine months ended September 30, 2020 and 2019, the Company assigned to Prestige accounts with an aggregate face amount of approximately $41.0 million and $39.0 million, respectively, for which Prestige paid to the Company approximately $32.8 million and $31.2 million, respectively, in cash. During the nine months ended September 30, 2020 and 2019, $34.3 million and $29.2 million was repaid to Prestige, respectively, including fees and interest.

 

On April 10, 2019, the Company and Prestige amended the terms of the agreement. The agreement was extended until April 1, 2020. Thereafter the agreement shall renew itself automatically for one (1) year periods unless either party receives written notice of cancellation from the other, at minimum, thirty (30) days prior to the expiration date.

 

Paycheck Protection Program Loan

 

Due to economic uncertainty as a result of the ongoing pandemic (COVID-19), on May 14, 2020, the Company received an aggregate principal amount of $964,910 pursuant to the borrowing arrangement (“Note”) with Harvest Small Business Finance, LLC (“HSBF”) and agreed to pay the principal amount plus interest at a 1% fixed interest rate per year, on the unpaid principal balance. The Note includes forgiveness provisions in accordance with the requirements of the Paycheck Protection Program, Section 1106 of the CARES Act.

 

The Note is expected to mature on May 16, 2022. Payments were due by November 16, 2020 (the “Deferment Period”) and interest was accrued during the Deferment Period. However, the Flexibility Act, which was signed into law on June 5, 2020, extended the Deferment Period to the date that the forgiven amount is remitted by the United States Small Business Administration (“SBA”) to HSBF. The Company is in the process of filling out the forgiveness application form. As of September 30, 2020, the Company owed approximately $1.0 million (principal plus accrued interest).

 

Off-Balance Sheet Arrangements

 

We did not have any off-balance sheet arrangements as of September 30, 2020.

 

Non-GAAP Adjusted EBITDA

 

In addition to disclosing financial results calculated in accordance with GAAP, this Form 10-Q discloses Adjusted EBITDA, which is net loss adjusted for items such as stock-based compensation, gain or loss on disposal of property and equipment, interest and other expense, net, depreciation of property and equipment, amortization of intangible assets, provision for doubtful accounts, impairment of intangible assets and taxes.

 

Management uses Adjusted EBITDA as a supplement to GAAP measures to further evaluate period-to-period operating performance, as well as the Company’s ability to meet future working capital requirements. The exclusion of non-cash charges, including stock-based compensation and depreciation and amortization, is useful in measuring the Company’s cash available for operations and performance of the Company. Management believes these non-GAAP measures will provide investors with important additional perspectives in evaluating the Company’s ongoing business performance.

 

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The GAAP measure most directly comparable to Adjusted EBITDA is net loss. The non-GAAP financial measure of Adjusted EBITDA should not be considered as an alternative to net loss. Adjusted EBITDA is not a presentation made in accordance with GAAP and has important limitations as an analytical tool and should not be considered in isolation or as a substitute for analysis of our results as reported under GAAP. Because Adjusted EBITDA excludes some, but not all, items that affect net loss and is defined differently by different companies, our definition of Adjusted EBITDA may not be comparable to similarly titled measures of other companies.

 

   

For the

Nine Months
ended

    For the
Three Months
ended
   

For the

Nine Months
ended

    For the
Three Months
ended
 
    September 30,
2020
    September 30,
2020
    September 30,
2019
    September 30,
2019
 
                         
Net Loss   $ 365       678       (15,468 )     (5,079 )
                                 
Non-GAAP adjustments:                                
Stock-based compensation     206       27       191       63  
(Gain) loss on disposal of property and equipment     (176 )     (165 )     5        
Gain on settlement of payables     (518 )     (518 )            
Interest and other expense, net     1,715       632       3,007       923  
Depreciation and amortization of property and equipment     130       24       269       75  
Amortization of intangible assets     240       80       240       80  
Impairment of operating lease right-of-use asset     167       167              
Provision for doubtful accounts     174       53       41       (232 )
Provision for income taxes     64       20       88       53  
                                 
Adjusted EBITDA   $ 2,367       998       (11,627 )     (4,117 )

 

Critical Accounting Policies and Estimates

 

The preparation of the accompanying consolidated financial statements and related disclosures in conformity with GAAP and our discussion and analysis of our financial condition and operating results require our management to make judgments, assumptions and estimates that affect the amounts reported in these consolidated financial statements and accompanying notes. Management bases its estimates on historical experience and on various other assumptions we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities. Actual results may differ from these estimates, and such differences may be material.

 

Note 2, “Summary of Significant Accounting Policies” in Part I, Item 1 of this Form 10-Q; Notes to Consolidated Financial Statements in Part II, Item 8 of the 2019 Form 10-K; and “Critical Accounting Policies and Estimates” in Part I, Item 7 of the 2019 Form 10-K describe the significant accounting policies and methods used in the preparation of our consolidated financial statements.

 

There have been no material changes to our critical accounting policies and estimates since the 2019 Form 10-K.

 

Item 3. Quantitative and Qualitative Disclosures About Market Risk

 

The Company qualifies as a smaller reporting company as defined in Item 10(f)(1) of SEC Regulation S-K, and is not required to provide the information required by this Item.

 

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Item 4. Controls and Procedures

 

i) Background.

 

In February 2019, management was made aware, as part of the year-end sales cut-off testing procedures performed during the Company’s 2018 annual audit, by its then independent auditors, Plante & Moran, PLLC, that sales transactions may have been recognized as revenue prematurely which could have a material impact on revenue recognition for the year ended December 31, 2018. Upon such notification, management reviewed the Company’s revenue recognition reporting system, practices and underlying documents supporting the appropriateness of revenue under the Company’s previously established accounting policies for each quarterly period in the year ended December 31, 2018. In addition to the 2018 year-end period, management initially concluded that a potential material misstatement in revenue recognition was isolated to the previously issued quarterly financial statements for the three and nine months ended September 30, 2018.

 

Audit Committee Investigation

 

In March 2019, following management’s presentation of their initial assessment of the revenue recognition issue, the Audit Committee of the Board of Directors engaged independent legal counsel and a forensic accountant to conduct an investigation and to work with management to determine the potential impact on accounting for revenues. The investigation included the review of management’s initial assessment, interviews with key personnel, correspondence, and document review, among other procedures. In April 2019, as a result of the findings of the Audit Committee’s investigation to date, the Company determined that certain of its employees had engaged in deliberate inappropriate conduct, which resulted in revenue being intentionally recorded in periods prior to the criteria for revenue recognition under GAAP being satisfied. Further, the investigation discovered that revenue had been prematurely recorded in prior periods as well as the periods initially identified by management.

 

The investigation revealed that certain customer orders had been invoiced, triggering revenue recognition, prior to the actual shipment leaving the Company’s control. Such orders from customers had been marked as fulfilled in the Company’s enterprise reporting platform (“ERP”), thereby triggering the generation of an invoice and the recognition of revenue, in advance of shipments from both the Company’s distribution center in Tennessee and for orders that were drop-shipped directly to key customers from certain contract manufacturers. In addition, it was discovered during the investigation that certain orders had been moved to third-party locations at the respective cut-off periods and not actually shipped to the end customer until after the cut-off period resulting in the premature issuance of invoices to customers and recognition of revenue.

 

As a result of the Audit Committee’s investigation, certain employees were terminated, and others received written reprimands related to their conduct as a result of their behavior. In connection with the improprieties identified during the investigation resulting in the restatement of previously reported financial statements, the Company identified control deficiencies in its internal control over financial reporting that constitute material weaknesses.

 

The investigatory adjustments are further described in Note 16, “Changes and Correction of Errors in Previously Reported Consolidated Financial Statements” located in Item 8 of the 2019 Form 10-K.

 

Other Adjustments Resulting from Reconsidering Previously Issued Financial Statements

 

As a result of issues identified during the Audit Committee investigation, management reconsidered the Company’s previously issued consolidated financial statements and as a result additional corrections to the Company’s previously issued consolidated financial statements for each of the quarterly reporting periods ended September 30, 2018 and for the year ended December 31, 2017 were identified. These errors, for each period presented below, were primarily due to the following:

 

Improper classification of trade promotions, payable to the Company’s customers, as operating expenses instead of a reduction in revenue;

 

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Improper cut-off related to sales transactions recorded prior to transfer of control to customers in 2018 and risk of loss transferred to the customer in 2017;
   
Corrections of estimates of the expected value of customer payments, in the form of credits, issued to customers;
   
Untimely recording of the change in the estimated useful life of leasehold improvements and an asset retirement obligation related to a modification to the lease of the Company’s former headquarters;
   
Incorrect treatment of debt discounts related to the related-party convertible note; and
   
Other period-end expense cut-off.

 

Other adjustments include, but are not limited to the following; purchase price variances, accrual for legal fees, payroll tax adjustment on restricted stock, rebate receivable and recognizing revenue on a net versus gross basis. Accumulated deficit has been adjusted to reflect changes to net loss, for each period restated.

 

(ii) Evaluation of disclosure controls and procedures.

 

The principal executive officer and principal financial officer have evaluated the Company’s disclosure controls and procedures as of September 30, 2020. Based on this evaluation, they concluded that because of the material weaknesses in our internal control over financial reporting discussed below, the disclosure controls and procedures were not effective as required under Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Disclosure controls and procedures are designed to ensure that the information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms and to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

 

(iii) Management’s report on internal control over financial reporting.

 

Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Exchange Act Rule 13a-15(f). The Company’s internal control over financial reporting is a process affected by the Company’s management to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP.

 

In designing and evaluating our internal controls and procedures, our management recognized that internal controls and procedures, no matter how well conceived and operated, can provide only a reasonable, not absolute, assurance that the objectives of the internal controls and procedures are met. In addition, any evaluation of the effectiveness of internal controls over financial reporting in future periods is subject to risk that those internal controls may become inadequate because of changes in conditions or the degree of compliance with the policies or procedures may deteriorate.

 

A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.

 

The Company’s management assessed the effectiveness of its internal control over financial reporting as of December 31, 2019. In making this assessment, it used the criteria set forth by the Committee of Sponsoring Organizations (COSO) of the Treadway Commission’s 2013 Internal Control-Integrated Framework. Based on its assessment, as well as factors identified during the Audit Committee investigation and subsequent audit process, management has concluded that the Company’s internal control over financial reporting as of December 31, 2019 was not effective due to the existence of the material weaknesses in internal control over financial reporting described below.

 

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(iv) Material Weaknesses Identified in connection with the Audit Committee Investigation.

 

Based on the principal findings of the investigation conducted by the Audit Committee, management has concluded that it did not maintain an appropriate control environment, inclusive of structure and responsibility including proper segregation of duties, and risk assessment and monitoring activities which led to revenue recognition and tonal concerns and which constituted the following material weaknesses:

 

A. Pressure to achieve sales targets gave rise to the premature and/or inappropriate recognition of revenues, typically occurring at or near the end of financial reporting periods;
   
B. The Company’s internal controls failed and/or were not adequate to ensure that there was effective testing of period end sales cutoff, including a proper review and comparison of invoice dates and related proof of delivery; and
   
C. Inadequate segregation of duties, allowing for an improper alignment of sales and operations under common leadership.

 

(v) Material Weaknesses Resulting from Reconsidering Previously Issued Financial Statements.

 

As described above, management reconsidered the Company’s previously issued financial statements resulting in corrections to our unaudited consolidated financial statements for each of the quarterly periods ended September 30, 2018 and our audited consolidated financial statements as of and for the year ended December 31, 2017, which are contained in Note 16, “Changes and Correction of Errors in Previously Reported Consolidated Financial Statements” located in Item 8 of the 2019 Annual Report on Form 10-K filed with the SEC on August 25, 2020.

 

We have identified the following material weaknesses in connection with these issues:

 

CONTROL ENVIRONMENT AND CONTROL ACTIVITIES

 

Management did not maintain an effective control environment, including ensuring that required accounting methodologies, policies, and technical accounting personnel were in place. This control deficiency led to a series of corrections related to the years 2018 and 2017 and resulted in a restatement to the respective previously issued financial statements.
   
The Company did not properly classify payments to customers, primarily for promotional activity, as a reduction in the transaction price with its customers, instead treating such payments as an advertising and promotions activity, a component of operating expense.
   
The Company reported certain sales transactions prior to transfer of control of goods, inconsistent with customer sales agreements and the Company’s customary practices.
   
The Company did not properly estimate the expected value of customer payments, in the form of credits, at each quarter period end in 2018. In addition, the Company understated its accrual for customers credits for the year ended December 31, 2017.
   
The Company did not adjust the estimated useful life of its leasehold improvements nor an asset retirement obligation in the proper period for its former headquarters.

 

THE COMPANY DOES NOT MAINTAIN ADEQUATE INTERNAL CONTROL DOCUMENATION AND TESTING PROCEDURES

 

The Company lacks the proper internal control documentation and testing, and therefore internal controls were not consistently performed. Management has concluded that the foregoing was attributable to several factors including the lack of finance leadership, not retaining a third-party professional Sarbanes-Oxley (“SOX”) testing consultant, and significant management turnover. Therefore, management has not documented and enforced an appropriate level of review and controls, including properly documented entity level, information technology general controls including appropriate user access controls, and business process controls.

 

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Remediation

 

Our remedial actions to date and remediation plans to be undertaken in response to the findings of the Audit Committee’s investigation and the material weaknesses on internal control over financial reporting and our conclusions reached in evaluating the effectiveness of our disclosure controls and procedures and internal controls over financial reporting as of September 30, 2020, are described below.

 

  Terminations and reprimands

 

The Company terminated certain employees directly responsible in the deliberate inappropriate conduct and other employees received written reprimands as a result of their behavior.

 

  Implementation of enhanced quarterly sales cut-off procedures

 

The Company has implemented internal controls and procedures to conduct enhanced revenue recognition cutoff testing on a quarterly basis.

 

  Mandatory training for the sales and operations department.

 

The Company has commenced a series of compliance outreach and training for its sales and operations departments relating to potential improper customer transactions identified by the internal investigation. These trainings will also include a review of the Company’s Code of Business Conduct and Ethics (the “Code of Conduct”) and the Employee Complaints & Whistleblower Policy (the “Whistleblower Policy”).

 

  Company-wide training about compliance matters, including with respect to employee complaints and concerns and enhancement of the customer contracting process.

 

The Company has commenced Company-wide training sessions. These sessions focus on a number of areas related to sensitivity training/tonal concerns, including increased promotion and training around the Code of Conduct and the Whistleblower Policy. The Company will design and implement a more formalized compliance program with the goal of sustaining a culture of compliance.

 

  Consider appropriate employment actions relating to certain employees

 

The Company implemented a senior leadership reorganization pursuant to which, among other things, the Company retained an experienced Chief Financial Officer with public company reporting expertise, hired a controller with fifteen years of assurance experience as a member of two Big 4 multinational accounting firms, as well as engaging third-party accounting personnel with the requisite skill set to strengthen the financial reporting structure and internal control over financial reporting. The Company is conducting a search for an industry knowledgeable operating officer to work closely with the Company’s Chief Executive Officer and Chief Financial Officer.

 

  Establishment of a disclosure committee

 

The Company has implemented a disclosure committee to assist the Chief Executive Officer and Chief Financial Officer in preparing the disclosures required under the SEC rules and to help ensure that the Company’s disclosure controls and procedures are properly implemented.

 

  Enhancing the internal compliance and legal functions, and authorizing management to retain the appropriate individual or individuals.

 

As part of the senior leadership reorganization referred to above, the Company engaged an outside firm which is in the process of revamping our internal control documentation and testing. In addition, the Company will continue to review the qualifications of our internal financial organization to ensure our personnel have the appropriate technical and SOX related expertise. The Company has enhanced its Whistleblower Policy by including our Audit Committee Chair in the investigation, documentation, and resolution process.

 

We are committed to continuing to improve our internal control processes related to these matters and will continue to review our financial reporting controls and procedures. As we continue to evaluate and work to improve our internal control over financial reporting, we may take additional measures to address deficiencies or modify certain of the remediation measures described above. We expect that our remediation efforts, including design and implementation, will continue through fiscal year 2020, with the goal to fully remediate all remaining material weaknesses by year-end.

 

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Other than the ongoing remediation efforts described above, there have been no changes during the quarter ended September 30, 2020 in the Company’s internal controls over financial reporting that have materially affected, or are reasonably likely to materially affect, internal controls over financial reporting.

 

Notwithstanding the material weaknesses described in this Item 9A, our management has concluded that the consolidated financial statements and related financial information included in this Form 10-Q presents fairly, in all material respects, our financial position, results of operations and cash flows for the periods presented in conformity with GAAP. Management’s position is based on a number of factors, including, but not limited to:

 

The completion of the Audit Committee’s investigation and the substantial resources expended (including the use of external consultants) and the resulting adjustments we made to our previously issued financial statements, including the restatement of our 2017 audited financial statements and our unaudited quarterly financial statements for the periods ended September 30, 2018, June 30, 2018 and March 31, 2018;
   
The reconsideration of significant accounting policies and accounting practices previously employed by the Company, resulting in other adjustments to previously issued consolidated financial statements; and

 

Based on the actions described above, we have updated, and in some cases corrected, our accounting policies and have applied those to our consolidated financial statements for all periods presented.

 

47

 

 

PART II—OTHER INFORMATION

 

Item 1. Legal Proceedings

 

In the normal course of business or otherwise, we may become involved in legal proceedings. We will accrue a liability for such matters when it is probable that a liability has been incurred and the amount can be reasonably estimated. When only a range of possible loss can be established, the most probable amount in the range is accrued. If no amount within this range is a better estimate than any other amount within the range, the minimum amount in the range is accrued. The accrual for a litigation loss contingency might include, for example, estimates of potential damages, outside legal fees and other directly related costs expected to be incurred. As of September 30, 2020, we were involved in the following material legal proceedings described below. These are not the only legal proceedings in which we are involved. We are involved in additional legal proceedings in the ordinary course of our business and otherwise.

 

ThermoLife International

 

In January 2016, ThermoLife International LLC (“ThermoLife”), a supplier of nitrates to MusclePharm, filed a complaint against us in Arizona state court. ThermoLife alleged that we failed to meet minimum purchase requirements contained in the parties’ supply agreement. In March 2016, we filed counterclaims alleging that ThermoLife’s products were defective. Through orders issued in September and November 2018, the court dismissed MusclePharm’s counterclaims and found that the Company was liable to ThermoLife for failing to meet its minimum purchase requirements.

 

The court held a bench trial on the issue of damages in October 2019, and on December 4, 2019, the court entered judgment in favor of ThermoLife and against the Company in the amount of $1.6 million, comprised of $0.9 million in damages, interest in the amount of $0.3 million and attorneys’ fees and costs in the amount of $0.4 million. The Company recorded $1.6 million in accrued expenses as of December 31, 2018. In the interim, the Company filed an appeal, which is in the process of being briefed, and has posted bonds in the total amount of $0.6 million in order to stay execution on the judgment pending appeal. Of the $0.6 million, $0.25 million (including fees) was paid by Mr. Drexler on behalf of the Company on December 31, 2019. See “Note 7. Debt” for additional information. Subsequent to December 31, 2019, the balance of $0.35 million was secured by a personal guaranty from Mr. Drexler, while the associated fees of $12,500 was paid by the Company.

 

For both the three months ended September 30, 2020 and 2019, interest expense recognized on the awarded damages was $22,000. For both the nine months ended September 30, 2020 and 2019, interest expense recognized on the awarded damages was $66,000.

 

The Company intends to continue to vigorously pursue its defenses on appeal.

 

White Winston Select Asset Fund Series MP-18, LLC et al., v MusclePharm Corp., et al., (Nev. Dist. Ct.; Cal. Superior Court; Colorado Dist. Ct.; Mass. Super. Ct.)

 

On August 21, 2018, White Winston Select Asset Fund Series MP-18, LLC and White Winston Select Asset Fund, LLC (together “White Winston”) initiated a derivative action against MusclePharm and its directors (collectively the “director defendants”). White Winston alleges that the director defendants breached their fiduciary duties by improperly approving the refinancing of three promissory notes issued by MusclePharm to Drexler (the “Amended Note”), in exchange for $18.0 million in loans. White Winston alleges that this refinancing improperly diluted their economic and voting power and constituted an improper distribution in violation of Nevada law. In its complaint, White Winston sought the appointment of a receiver over MusclePharm, a permanent injunction against the exercise of Drexler’s conversion right under the Amended Note, and other unspecified monetary damages. On September 13, 2018, White Winston filed an amended complaint, which added a former MusclePharm executive, as a plaintiff (together with White Winston, the “White Winston Plaintiffs”). On December 9, 2019, the White Winston Plaintiffs filed a Second Amended Complaint, in which they added allegations relating to the resignation of MusclePharm’s auditor, Plante & Moran PLLC (“Plante Moran”). MusclePharm has moved to dismiss the Second Amended Complaint. That motion has not yet been fully briefed.

 

48

 

 

Along with its complaint, the White Winston Plaintiffs also filed a motion for a temporary restraining order (“TRO”) and preliminary injunction enjoining the exercise of Drexler’s conversion right under the Amended Note. On August 23, 2018, the Nevada district court issued an ex parte TRO. On September 14, 2018, the court let the TRO expire and denied the White Winston Plaintiffs’ request for a preliminary injunction, finding, among other things, that the White Winston Plaintiffs did not show a likelihood of success on the merits of the underlying action and failed to establish irreparable harm. Following the court’s decision, MusclePharm filed a motion seeking to recoup the legal fees and costs it incurred in responding to the preliminary injunction motion. On October 31, 2019, the court awarded MusclePharm $56,000 in fees and costs. The White Winston Plaintiffs have appealed that award.

 

Due to the uncertainty associated with determining our liability, if any, and due to our inability to ascertain with any reasonable degree of likelihood, as of the date of this report, the outcome of the trial, the Company has not recorded an estimate for its potential liability.

 

On June 17, 2019, the White Winston Plaintiffs moved for the appointment of a temporary receiver over MusclePharm, citing Plante Moran’s resignation. The court granted the White Winston Plaintiffs’ request to hold an evidentiary hearing on the motion, but the date for that hearing was not set as of the date hereof. On July 30, 2019, the White Winston Plaintiffs filed an action in the Superior Court of the State of California in and for the County of Los Angeles, seeking access to MusclePharm’s books and records. MusclePharm has answered the petition, asserting as a defense that the request does not have a proper purpose. A trial on the petition has been set for February 25, 2021.

 

The Company intends to vigorously defend these actions.

 

IRS Audit

 

On April 6, 2016, the Internal Revenue Service (“IRS”) selected our 2014 Federal Income Tax Return for audit. As a result of the audit, the IRS proposed certain adjustments with respect to the tax reporting of our former executives’ 2014 restricted stock grants. Due to the Company’s current and historical loss position, the proposed adjustments would have no material impact on the Company’s Federal income tax. On October 5, 2016, the IRS commenced an audit of our employment and withholding tax liability for 2014. The IRS contends that the Company inaccurately reported the value of the restricted stock grants and improperly failed to provide for employment taxes and Federal tax withholding on these grants. In addition, the IRS is proposing certain penalties associated with the Company’s filings. On April 4, 2017, the Company received a “30-day letter” from the IRS asserting back taxes and penalties of approximately $5.3 million, of which $4.4 million related to withholding taxes, specifically, income withholding and Social Security taxes, and $0.9 million related to penalties. Additionally, the IRS asserts that the Company owes information reporting penalties of approximately $2.0 million.

 

The Company’s counsel has submitted a formal protest to the IRS disputing on several grounds all of the proposed adjustments and penalties on the Company’s behalf, and the Company has been pursuing this matter vigorously through the IRS appeal process. An Appeals Conference was held with the IRS in Denver, Colorado on July 31, 2019. At the conference, the Company made substantial arguments challenging the IRS’s claims for employment taxes and penalties. On December 16, 2019, a further Appeals Conference was held with the IRS by telephone. At the telephone conference, the Appeals Officer confirmed that he agreed with the Company’s argument that the failure to deposit penalties should be conceded by the IRS. The failure to deposit penalties total about $2.0 million. Thus, with this concession, the IRS’s claims have been reduced from approximately $7.3 million to about $5.3 million.

 

The remaining issue in dispute in this matter involves the fair market value of restricted stock units in the Company granted to certain former officers (the “Former Officers”) of the Company under Internal Revenue Code § 83. The Company and the IRS disagree as to the value of the restricted stock on the date of the grants, i.e., October 1, 2014. The Company and the IRS have exchanged expert valuation reports on the fair market value of the stock and have had extensive negotiations on this issue. The parties, however, have not been able to reach an agreement with respect to the value of the stock. The IRS has also made parallel claims regarding the restricted stock units against the Former Officers of the Company. The IRS has asserted that the Former Officers received ordinary income from the stock grants, and that they owe additional personal income taxes based on the fair market value of the stock. The Former Officers’ cases, unlike the Company’s case, are pending before the United States Tax Court. In the Tax Court litigation, the Former Officers are challenging the IRS’s determinations regarding the fair market value of the restricted stock grants on October 1, 2014. The Former Officers have separate counsel from the Company. The same IRS Appeals Officer and Revenue Agents assigned to the Company’s case are also involved in the cases for the Former Officers. Throughout the proceedings, the Company has argued to the IRS that it is the Former Officers who are directly and principally liable for the amount of any tax due, and not the Company.

 

49

 

 

The Former Officers cases were scheduled for trial in Tax Court on March 9, 2020. The trial of the cases was continued by the Court on February 4, 2020. The basis for the continuance was that the IRS and the Former Officers had made progress toward a settlement of the valuation issue involving the grants of the restricted stock. The outcome of these settlement negotiations will be relevant to the Company’s case. The Company is closely monitoring the settlement discussions between the IRS and the Former Officers. The Tax Court has ordered the Former Officers to file status reports regarding progress of their settlement negotiations with the IRS on or before October 22, 2020.

 

Due to the uncertainty associated with determining our liability for the asserted taxes and penalties, if any, and to our inability to ascertain with any reasonable degree of likelihood, as of the date of this report, the outcome of the IRS appeals process, the Company has not recorded an estimate for its potential liability, if any, associated with these taxes.

 

On August 22, 2018, Richard Estalella filed an action against the Company and two other defendants in the Colorado District Court for the County of Denver, seeking damages arising out of the IRS’s assertion of tax liability and penalties relating to the 2014 restricted stock grants. The Company has answered Estalella’s complaint, asserted counterclaims against Estalella for his failure to ensure that all withholding taxes were paid in connection with the 2014 restricted stock grants, and filed cross-claims against a valuation firm named in the action for failing to properly value the 2014 restricted stock grants for tax purposes. The Company, on the other hand, is relying on a separate valuation report prepared by a different valuation firm in its defense to the IRS case. This new valuation firm supports the Company’s position. The Company is waiting on the next steps from the court and will continue to vigorously litigate the matter.

 

4Excelsior Matter

 

On March 18, 2019, 4Excelsior, a manufacturer of MusclePharm products, filed an action against MusclePharm in the Superior Court of the State of California for the County of Los Angeles, claiming approximately $6.2 million in damages relating to allegedly unpaid invoices, as well as approximately $7.8 million in consequential damages. On January 27, 2020, MusclePharm filed a counterclaim against 4Excelsior seeking unidentified damages relating to, among other things, 4Excelsior’s failure to fulfill a purchase order. MusclePharm also moved to strike 4Excelsior’s consequential damages on the grounds that they are unrecoverable under the Uniform Commercial Code. The court denied that motion, and the action has proceeded to discovery. The Company had a liability of $5.7 million and $5.3 million as of September 30, 2020 and December 31, 2019, respectively. This liability, which represents past due invoices (May 2018 through March 2019) plus interest, is recorded in “Accounts Payable” in the consolidated balance sheets. Trial has not yet been set, although a Trial Setting Conference was set for December 17, 2020.

 

On November 16, 2020, the Company and 4Excelsior entered into a stipulation of settlement that provided that the Company would pay to 4Excelsior a total of $4,750,000, in four monthly payments of $70,000, beginning January 5, 2021, and thereafter in monthly payments of $100,000. The parties have not yet entered into a settlement agreement giving effect to the stipulation of settlement.

 

50

 

 

Item 1A. Risk Factors

 

The information to be reported under this Item is not required for smaller reporting companies.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

 

None.

 

Item 3. Defaults Upon Senior Securities.

 

None.

 

Item 4. Mine Safety Disclosures

 

None.

 

Item 5. Other Information.

 

51

 

 

Item 6. Exhibit Index

 

        Incorporated by Reference
Exhibit
No.
  Description   Form  

SEC File

Number

  Exhibit   Filing Date
                     
10.1   Amended and Restated Convertible Secured Promissory Note, dated August 21, 2020, between MusclePharm Corporation and Ryan Drexler   8-K   000-53155   10.1   August 27, 2020
                     
10.2   Fourth Amended and Restated Security Agreement, dated August 21, 2020, between MusclePharm Corporation and Ryan Drexler   8-K   000-53155   10.2   August 27, 2020
                     
10.3**+   Settlement Agreement between MusclePharm Corporation and NBF Holdings Canada Inc., dated September 25, 2020                
                     

31.1**

  Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.                
                     
31.2**   Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.                
                     
32.1***   Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.                
                     
32.2***   Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.                
                     
101**   The following materials from MusclePharm Corporation’s quarterly report on Form 10-Q for the three months ended September 30, 2020 formatted in XBRL (eXtensible Business Reporting Language): (i) the Consolidated Balance Sheets; (ii) the Consolidated Statements of Operations; (iii) the Consolidated Statements of Comprehensive Income; (iv) the Consolidated Statement of Changes in Stockholders’ Deficit; (v) the Consolidated Statements of Cash Flows; and (vi) related notes to these financial statements.

 

** Filed herewith
   
*** Furnished herewith
   
+ Pursuant to 17 C.F.R §§230.406 and 230.83, the confidential portions of this exhibit have been omitted and are marked accordingly

 

52

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  MUSCLEPHARM CORPORATION
     
Date: November 23, 2020 By: /s/ Allen Sciarillo
  Name: Allen Sciarillo
  Title: Chief Financial Officer
    (Principal Financial Officer)

 

53

 

 

Exhibit 10.3

 

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO MUSCLEPHARM CORPORATION IF PUBLICLY DISCLOSED

 

CONFIDENTIAL SETTLEMENT AGREEMENT

 

NBF Holdings Canada Inc. v. MusclePharm Corporation, Case No. 2:20-cv-01946-SVW

 

PARTIES

 

THIS CONFIDENTIAL SETTLEMENT AGREEMENT (“Agreement”) is entered into by and between NBF Holdings Canada Inc. (“Nutrablend”) and MusclePharm Corporation (“MusclePharm”). (Nutrablend and MusclePharm are referred to collectively as the “Parties,” or individually as a “Party.”) The Effective Date of this Agreement shall be the latest date shown on the fully executed signature page(s) (“Effective Date”).

 

RECITALS

 

A. On February 27, 2020, Nutrablend commenced a civil action against MusclePharm in the United States District Court for the Central District of California, Case No. 2:20-cv-01946-SVW-AFM (the “Litigation”).

 

B. Nutrablend claimed that MusclePharm breached the Parties’ agreement for the sale of blended health nutrition products (the “Alleged Agreement”) by failing to remit payment for outstanding invoices totaling $3,085,641.52 U.S. Dollars as of February 27, 2020.

 

C. On May 18, 2020 MusclePharm filed its answer in the Litigation.

 

D. The Parties recognize the cost, burden, and uncertainty of litigation, as well as the extended period of time that it will likely take to resolve the dispute through litigation, and have independently concluded that their respective interests would be best served by compromising and concluding all corresponding disputes between them regarding the Alleged Agreement and outstanding invoices.

 

E. The Parties desire to resolve and settle their disputes and all claims, counterclaims, and causes of action that were or could have been asserted.

 

F. The Parties acknowledge that they are entering into this Agreement voluntarily and after consultation with counsel of their choosing.

 

NOW, THEREFORE, in consideration of these promises and the mutual covenants set forth herein and for valuable and mutual consideration, and in consideration of the foregoing recitals (“Recitals”), the Parties agree as follows in order to fully and finally resolve the dispute:

 

1. Recitals. The foregoing Recitals are expressly incorporated as part of the Agreement, and the Parties confirm and represent to one another that said Recitals are true and correct to the best of their knowledge, information, and belief.

 

 

 

 

2. Consideration. In consideration for Nutrablend’s promises and covenants contained herein, MusclePharm agrees and admits that it owes Nutrablend the total, and outstanding, amount of three million eighty five thousand six hundred forty one U.S. Dollars and fifty two cents ($3,085,641.52) (“Owed Amount”). MusclePharm further agrees to pay the Owed Amount to Nutrablend in monthly payments (“Monthly Payments”), as well as to issue monthly purchase orders at minimum amounts accepted by Nutrablend (“Purchase Order(s)”), according to the following schedule:

 

  (a) September 1, 2020 through November 30, 2020 (“First Pay Period”):

 

(i) MusclePharm will pay [***] to Nutrablend, in three equal payments of [***] U.S. Dollars on or before each of September 1 (or immediately thereafter as the Agreement is fully executed by the parties), October 1, and November 1, 2020.

 

(ii) MusclePharm will issue three Purchase Orders, each within the first business week of each of September (or within the first business week after this Agreement is fully executed by the parties, whichever is later), October, and November 2020, respectively. The combined total amount of these Purchase Orders will be at least $1,500,000. All Purchase Orders issued by MusclePharm to Nutrablend within the First Pay Period shall count towards the minimum combined total amount of Purchase Orders described in the previous sentence, even if issued prior to the effective date of this Agreement. Nutrablend will schedule orders for production at its then current minimum lead times. After production is complete, MusclePharm will pay [***].

 

  (b) December 1, 2020 through February 28, 2021 (“Second Pay Period”):

 

(i) MusclePharm will pay [***] U.S. Dollars, in three equal payments of [***] U.S. Dollars on or before each of December 1, 2020, January 1 and February 1, 2021.

 

(ii) MusclePharm will issue three Purchase Orders, each within the first business week of each of December 2020, January and February 2021, respectively. The combined total amount of these Purchase Orders will be at least $1,800,000. Nutrablend will schedule orders for production at its then current minimum lead times. After production is complete, MusclePharm will pay [***].

 

  (c) March 1, 2021 through May 31, 2021 (“Third Pay Period”):

 

(i) MusclePharm will pay [***] U.S. Dollars to Nutrablend, in three equal payments of [***] U.S. Dollars on or before each of March 1, April 1, and June 1, 2021.

 

(ii) MusclePharm will issue three Purchase Orders, each within the first business week of each of March, April, and May 2021, respectively. The combined total amount of these Purchase Orders will be at least $2,100,000. Nutrablend will schedule orders for production at its then current minimum lead times. After production is complete, MusclePharm will pay [***].

 

  (d) June 1, 2021 through August 31, 2021 (“Fourth Pay Period”):

 

(i) MusclePharm will pay [***] U.S. Dollars to Nutrablend, in three equal payments of [***] U.S. Dollars on or before each of June 1, July 1, and August 1, 2021.

 

 

 

 

(ii) MusclePharm will issue three Purchase Orders, each within the first business week of each of June, July, and August 2021, respectively. The combined total amount of these Purchase Orders will be at least $2,100,000. Nutrablend will schedule orders for production at its then current minimum lead times. After production is complete, MusclePharm will pay [***].

 

  (e) September 1, 2021 through October 30, 2021 (“Fifth Pay Period”):

 

(i) MusclePharm will pay [***] U.S. Dollars to Nutrablend, in two equal payments of [***] U.S. Dollars on or before each of September 1 and October 1, 2021.

 

(ii) MusclePharm will issue two Purchase Orders, each within the first business week of each of September and October 2021, respectively. The combined total amount of these Purchase Orders will be at least $1,400,000. Nutrablend will schedule orders for production at its then current minimum lead times. After production is complete, MusclePharm will pay [***].

 

  (f) Beginning November 1, 2021, MusclePharm will pay [***] U.S. Dollars per month, due on or before the first day of each month, to Nutrablend until the Owed Amount is paid in full to Nutrablend. MusclePharm will also issue Purchase Orders to Nutrablend each month (each a “Subsequent Pay Period,” and together with the First, Second, Third, Fourth or Fifth Pay Periods, the “Pay Periods”) in a minimum amount of [$700,000.00] U.S. Dollars on a [***] basis until the Owed Amount is paid in full to Nutrablend, subject to the terms of Section 4 below.
     
  (g) Should the combined total amount of any of the Purchase Orders for any of the First, Second, Third, Fourth, or Fifth Pay Periods be less than 90% of the agreed required combined total amount for that Pay Period, MusclePharm shall make up such a shortfall from the required combined total amount for that Pay Period on subsequent Purchase Orders issued within the next twelve months. Such make up on subsequent orders shall not affect the combined total amount for any subsequent Pay Period.
     
  (h) Should the combined total amount of any of the Purchase Orders for any of the First, Second, Third, Fourth, or Fifth Pay Periods be 110% or more of the agreed required combined total amount for that Pay Period, such excess over the required combined total amount for that Pay Period may be applied to the required combined total amount for subsequent Purchase Orders issued within the next twelve months. In addition, such excess amounts shall be eligible for an extension of a line of credit from Nutrablend.

 

 

 

 

  (i) Pricing for Purchase Orders

 

(i) Pricing for the Purchase Orders shall be based on the mutually agreeable market cost of [***]. The formula for calculating the price is as follows:

 

Cost Summary

  / unit   Calculation
[***]   (A)   [***]
[***]   (B)   [***]
[***]   (C)   [***]
[***]   (D)   [***]
[***]   (E)   [***]
MusclePharm Cost   (F)   (A)+(B)+(C)+(D)+(E)
[***]
  +[***]   [***]
TOTAL [***]   ____   (F) x ([***])

 

  (j) The Monthly Payments shall be delivered to Nutrablend beginning on September 1, 2020, or immediately thereafter as the Agreement is fully executed by the parties, and shall be made by wire transfer pursuant to the “Wire Payment Services” information attached hereto as Exhibit A.
     
  (k) Additional Relationships. In addition to the Monthly Payments, the Parties intend to enter into a business relationship by and among themselves with [***]. Regarding any and all future business transactions between the Parties and [***], the Parties agree that MusclePharm will remit payment to Nutrablend for all purchase orders placed by [***] promptly upon MusclePharm’s receipt of payment from [***], but not to exceed thirty (30) calendar days of shipment to [***]. For the avoidance of doubt, Purchase Orders issued by MusclePharm to Nutrablend relating to [***] will count towards the minimum required amount of Purchase Orders in the Pay Period in which they are placed.
     
  (l) Also, in addition to the Monthly Payments, the Parties intend to enter into a business relationship by and among themselves with [***]. Regarding any and all future business transactions between the Parties and [***], the Parties agree that MusclePharm will remit payment to Nutrablend for all purchase orders placed by [***] promptly upon MusclePharm’ s receipt of payment from [***], but not to exceed thirty (30) calendar days of shipment to [***]. For the avoidance of doubt, Purchase Orders issued by MusclePharm to Nutrablend relating to [***] will count towards the minimum required amount of Purchase Orders in the Pay Period in which they are placed.
     
  (m) The payment terms for all [***]orders issued by MusclePharm during the term of this Agreement will remain, and shall be, [***].
     
  (n) Upon payment in full of the Owed Amount by MusclePharm, all then-existing and future obligations under this Agreement to make Monthly Payments and issue minimum Purchase Orders shall cease.

 

 

 

 

  (o) In the event that MusclePharm pays Nutrablend the full Owed Amount before [September 1, 2021], Nutrablend agrees to issue a rebate on all completed Purchase Orders as of the date Musclepharm receives full payment of the Owed Amount, per the below schedule:

 

(i) If the completed Purchase Orders at the time of full payment total [***] million U.S. dollars or less, the rebate shall be [***] of the completed and fully paid Purchase Orders.

 

(ii) If the completed Purchase Orders at the time of full payment total [***] million U.S. dollars or less, the rebate shall be [***] of the completed and fully paid Purchase Orders.

 

(iii) If the completed Purchase Orders at the time of full payment total [***] million U.S. dollars or less, the rebate shall be [***] of the completed and fully paid Purchase Orders.

 

(iv) If the completed Purchase Orders at the time of full payment total [***] U.S. Dollars or more, the rebate shall be [***] of the completed and fully paid Purchase Orders.

 

3. Event of Default. Any breach by MusclePharm of this Agreement that remains uncured after five business days’ written notice will be considered an “Event of Default.” The Parties agree that, subject to Paragraph 2(g) & (h), any failure by MusclePharm to make timely payment of any of the Monthly Payments, or to issue any of the agreed Purchase Orders, shall constitute a breach of this Agreement and an Event of Default. Notwithstanding the foregoing, it is hereby agreed that the failure by MusclePharm to make a payment, or issue a Purchase Order, required by this Agreement shall not be an Event of Default unless such failure is greater than 10% of the required payment or Purchase Order. It is further agreed that the failure to pay for amounts due under a Purchase Order shall not constitute an Event of Default in the event that MusclePharm raises a good faith, bona fide dispute regarding whether the goods provided by Nutrablend conform with the Purchase Order, provided that MusclePharm raise such dispute within seven calendar days of receiving the goods, and timely pay all amounts due relating to the portion of goods that conform with the Purchase Order. Upon the occurrence of an Event of Default, the unpaid balance of the Owed Amount shall be accelerated, and become immediately due and payable by MusclePharm to Nutrablend, and Nutrablend shall have the authority to initiate a legal proceeding pursuant to the “Enforcement” provision below to enforce this Agreement. Further, in the Event of Default, and only in the Event of a Default, Nutrablend shall be entitled to, and MusclePharm agrees that Nutrablend may, submit, file, and enter the Stipulated Judgment attached hereto as Exhibit B, or such other pleading as the court may require. Nutrablend will be entitled to recover its reasonable court costs and attorneys’ fees from MusclePharm in connection with such actions due to MusclePharm’s breach of this Agreement.

 

4. Line of Credit. Once the Monthly Payments, and any other additional payments MusclePharm shall make on the Owed Amount, reduce the outstanding balance of the Owed Amount to below [$2 Million] U.S. Dollars, MusclePharm shall be eligible for an extension of a line of credit from Nutrablend in an amount of up to [$3 Million] U.S. Dollars.

 

 

 

 

5. Tax Consequences. The Parties make no representations regarding the Agreement’s tax consequences. Each Party agrees that it will not assert a claim against the other Party for the payment or reimbursement of any tax consequences resulting from any payment made pursuant to this Agreement.

 

6. Mutual General Release.

 

In exchange for legally sufficient consideration as described herein, the Parties hereby fully, finally, and mutually generally release each of the other from any and all claims that do, or may, exist as between them, as follows:

 

(a) As of the Effective Date, Nutrablend, on its own behalf and on behalf of its shareholders, directors, officers, employees, agents, legal representatives, affiliates, parents, predecessors, successors, insurers, subsidiaries and sibling corporations and entities, heirs, assigns, and anyone else acting on its behalf (the “Nutrablend Releasors”), hereby generally, voluntarily and knowingly, absolutely, irrevocably, broadly and unconditionally fully and forever release and discharge MusclePharm, and its shareholders, directors, officers, employees, agents, legal representatives, affiliates, parents, predecessors, successors, insurers, subsidiaries and sibling corporations and entities, heirs, assigns, and anyone else acting on its behalf, of and from any and all liability, claims, demands, damages, punitive damages, disputes, suits and action, in law or in equity, whether known or unknown, suspected or unsuspected, or foreseen or unforeseen, of any kind or nature whatsoever, that were or that could have been alleged in any court of other forum, which Nutrablend now or hereafter can, shall, or may have arising out of, relating to, or assertable in connection with the Alleged Agreement and any outstanding invoices thereunder, except for the obligations set forth in this Agreement.

 

(b) As of the Effective Date, MusclePharm, on its own behalf and on behalf of its shareholders, directors, officers, employees, agents, legal representatives, affiliates, parents, predecessors, successors, insurers, subsidiaries and sibling corporations and entities, heirs, assigns, and anyone else acting on its behalf (the “MusclePharm Releasors”), hereby generally, voluntarily and knowingly, absolutely, irrevocably, broadly and unconditionally fully and forever releases and discharges Nutrablend and its shareholders, directors, officers, employees, agents, legal representatives, affiliates, parents, predecessors, successors, insurers, subsidiaries and sibling corporations and entities, heirs, assigns, and anyone else acting on its behalf, of and from any and all liability, claims, demands, damages, punitive damages, disputes, suits and action, in law or in equity, whether known or unknown, suspected or unsuspected, or foreseen or unforeseen, of any kind or nature whatsoever, that were or that could have been alleged in any court of other forum, which MusclePharm now or hereafter can, shall, or may have arising out of, relating to, or assertable in connection with the Alleged Agreement and outstanding invoices, except for the obligations set forth in this Agreement.

 

(c) The releases stated in Section 6(a) and 6(b) of this Agreement will be referred to as the “Released Claims.” Excluded from these releases are: (i) claims that cannot be waived by law, if any; and (ii) claims for enforcement of this Agreement.

 

 

 

 

(d) Except for the obligations under this Agreement, the MusclePharm Releasors and the Nutrablend Releasors (together, the “Releasors”) agree that their releases expressly waive and release any and all provisions, rights, and benefits conferred by § 1542 of the California Civil Code, which states:

 

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY;

 

or of any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to § 1542 of the California Civil Code. Each Releasor may hereafter discover facts other than or different from those which he, she, or it knows or believes to be true with respect to the Released Claims which are the subject matter of the provisions of Paragraph 6 of this Agreement, but each Releasor hereby expressly waives and fully, finally, and forever settles and releases, upon this Agreement becoming final, any known or unknown, suspected or unsuspected, contingent or non-contingent claim with respect to the subject matter of the provisions of Paragraph 6 of this Agreement, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such different or additional facts.

 

7. Dismissal of Litigation. Within five (5) business days of the Effective Date, Nutrablend shall file a Notice of Dismissal in the Litigation, with the consent and agreement of Musclepharm, dismissing all claims asserted in the Litigation with prejudice. Each Party shall bear its own attorney’s fees and expenses incurred in connection with the Litigation and the drafting of this Agreement.

 

8. No Other Pending Claims. The Parties agree and represent that they have no other pending legal actions or claims against each other, including in any court, arbitration forum, governmental or administrative forum or agency, or other dispute resolution forum that are in any way related to the Litigation or dispute described herein.

 

9. Settlement Not an Admission. It is expressly understood that this Agreement and the settlement it represents are entered into solely for the purpose of allowing the Parties to avoid further litigation. This Agreement does not constitute an admission by either Party of any wrongdoing, preexisting contractual obligation, or of any duty whatsoever, whether based in statute, regulation, common law, or otherwise, and each Party expressly denies that any liability or any such violation has occurred.

 

10. Representations. Each Party represents and warrants that it has the full power, capacity and authority to enter into this Agreement, that it has not sold, transferred, conveyed, assigned, or otherwise disposed of any right, title or interest in any of the Released Claims herein to any person or entity, and that each of the Parties is not aware of any other person or entity who may have or who has asserted or can assert a right, title, or interest in any of the Released Claims covered by this Agreement. The Parties further affirm that the Parties are fully capable of executing this Agreement and understand its contents and, further, that the Parties have legal counsel of their own choice to explain the legal effect of signing this Agreement.

 

 

 

 

11. Confidentiality. The Parties agree that this Agreement, as well as the nature and terms of this settlement and the subject matter thereof, will be forever treated as confidential and the Parties shall make no disclosure or reference to the terms of this Agreement to any person or entity, except to the Parties’ respective attorneys and, as necessary, auditors and/or tax preparers, provided that each such person agrees to be bound by the confidential nature of this Agreement. The Parties and their counsel may also make such disclosures pursuant to court or administrative order, subpoena, or as otherwise may be required by law. MusclePharm shall also be permitted to file with or furnish to the Securities and Exchange Commission (the “Commission”) any specific disclosure of this Agreement or the terms or substance thereof or include this Agreement as an exhibit to any report, statement or other document filed with or furnished to the Commission if (i) MusclePharm receives a written or oral comment from the Commission requiring MusclePharm to make any such disclosure; or (ii) MusclePharm believes in good faith, including upon the advice of counsel or its auditors, that MusclePharm is required to make any such disclosure of this Settlement Agreement or the terms or substance thereof in any such report, statement or other document, including pursuant to Regulation S-K, Regulation S-X or other applicable accounting standards or interpretations or to prevent a material misstatement in or omission of a material fact from any filing or other disclosure made by it; provided, that, to the extent that MusclePharm believes that it can do so in good faith, in connection with any public filing of this Agreement as an Exhibit with the Commission, MusclePharm shall seek confidential treatment of those portions of this Agreement for which it in good faith believes confidential treatment is appropriate under the Commission’s standards for granting confidential treatment. The Parties acknowledge and agree that the Parties’ promises to maintain the confidentiality of the Agreement are an important element of the consideration for and inducement of the Parties to enter into this Agreement. The Parties further agree that any Party’s breach of this Agreement’s confidentiality clause constitutes irreparable harm to the other Party. In the event of an actual or threatened confidentiality breach, the Parties consent to a temporary restraining order, preliminary injunction, and/or permanent injunction prohibiting commission or continuation of any actual or threatened breach. Nothing in this Agreement shall preclude the Parties from stating, in response to any inquiry, that this dispute has been resolved by mutual Agreement and to the mutual satisfaction of the Parties, but it is expressly agreed that the Parties shall make no further comment.

 

12. Entire Agreement. In addition to Exhibit A attached hereto, this Agreement comprises the entire agreement between the Parties and supersedes any and all prior oral and written agreements between them. This Agreement may not be altered, amended, or modified except by a further writing signed by the Parties.

 

13. Severability. Should any clause, sentence, paragraph or other part of this Agreement be finally adjudged by any court of competent jurisdiction to be invalid or in any way unenforceable, such adjudication shall not affect, impair, invalidate or nullify the remainder of the Agreement, but shall affect only the clause, sentence, paragraph or other parts so adjudged.

 

14. Agreement Jointly Negotiated. Each Party acknowledges that this Agreement was jointly negotiated and prepared. The Agreement shall not be construed by any court of law or equity against any party solely by virtue of any party having drafted this Agreement.

 

15. Enforcement of Settlement. The Parties agree that this Agreement shall be enforceable pursuant to California Civil Code Section 664.6, and will take any and all actions necessary to have this Court retain jurisdiction over the parties to enforce the Agreement until performance in full of the terms of the Agreement. In the event of any breach of the terms and conditions herein, the non-breaching party shall have all of the remedies afforded by law (including the ability to seek recovery of the remainder of the outstanding Owed Amount provided for in this Agreement). In the event legal suit is successfully brought for the breach of any of the terms and conditions of this Agreement, the prevailing party shall be paid its reasonable costs and attorneys’ fees by the non-prevailing party, as fixed by a court of competent jurisdiction.

 

 

 

 

16. Governing Law and Venue. The Parties agree that this Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. Rather, this Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to choice of law or conflict of laws principles. The Parties consent to submit to the jurisdiction of the state and/or federal courts located within Los Angeles in the State of California for resolution of any dispute arising out of the Agreement. The Parties waive any objections to such venue.

 

17. Opportunity to Consult Legal Counsel. The Parties confirm that they have reviewed and considered this Agreement and consulted with their attorneys regarding the terms and effect thereof.

 

18. Authority to Settle. Each Party represents and warrants that the person signing this Agreement has authority to bind the Party and enter into the Agreement.

 

19. Non-Waiver. Failure to insist upon strict compliance with any terms of this Agreement is not a waiver of such terms. The waiver of any breach of any provision of this Agreement will not be deemed a waiver of any other breach of any provision of this Agreement.

 

20. Signing in Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original, but all of which together constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or electronic mail shall be deemed a binding, original signature.

 

21. THE PARTIES CERTIFY THAT EACH HAS READ ALL OF THIS AGREEMENT AND FULLY UNDERSTAND ITS TERMS.

 

 

 

 

IN WITNESS WHEREOF, the undersigned Parties agree to each of the above terms, conditions, and provisions.

 

  NBF Holdings Canada Inc.
   
Date Executed: September 25, 2020 /s/ Bill Zinger
  Its Authorized Signatory
  Print Name: Bill Zinger
  Title: Chairman
   
  MusclePharm Corporation
   
Date Executed: September 25, 2020 /s/ Ryan Drexler
  Its Authorized Signatory
  Print Name: Ryan Drexler
  Title: CEO

 

 

 

 

Exhibit 31.1

 

Certification Pursuant to Exchange Act Rule 13a-14(a)/15d-14(a) as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

I, Ryan Drexler, certify that:

 

  1. I have reviewed this Quarterly Report on Form 10-Q of MusclePharm Corporation;
  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 present 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 financing 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 my 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: November 23, 2020 By: /s/ Ryan Drexler
    Ryan Drexler
    Chief Executive Officer
    (Principal Executive Officer)

 

 

 

 

 

 

 

Exhibit 31.2

 

Certification Pursuant to Exchange Act Rule 13a-14(a)/15d-14(a) as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

I, Allen Sciarillo, certify that:

 

  1. I have reviewed this Quarterly Report on Form 10-Q of MusclePharm Corporation;
  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 present 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 financing 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 my 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: November 23, 2020 By: /s/ Allen Sciarillo
    Allen Sciarillo
    Chief Financial Officer
    (Principal Financial Officer and Principal Accounting Officer)

 

 

 

 

Exhibit 32.1

 

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 this Quarterly Report of MusclePharm Corporation (the “Company”), on Form 10-Q for the period ended September 30, 2020, as filed with the U.S. Securities and Exchange Commission on the date hereof (the “Report”), I, Ryan Drexler, Principal Executive 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, that to the best of my knowledge:

 

  (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 operations of the Company.

 

Date: November 23, 2020 By: /s/ Ryan Drexler
   

Ryan Drexler

Chief Executive Officer

(Principal Executive Officer)

 

 

 

 

Exhibit 32.2

 

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 this Quarterly Report of MusclePharm Corporation (the “Company”), on Form 10-Q for the period ended September 30, 2020, as filed with the U.S. Securities and Exchange Commission on the date hereof (the “Report”), I, Allen Sciarillo, Principal 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, that to the best of my knowledge:

 

  (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 operations of the Company.

 

Date: November 23, 2020 By: /s/ Allen Sciarillo
    Allen Sciarillo
   

Chief Financial Officer

(Principal Financial Officer and Principal Accounting Officer)