MUSCLEPHARM CORPORAT

MSLP
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MUSCLEPHARM : MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (form 10-K)

03/29/2021 | 05:21pm

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 Annual Report on Form
10-K. This discussion contains forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those discussed
below. See "Forward Looking Statements" and "Item 1A. Risk Factors." Except as
otherwise indicated herein, the terms "MusclePharm," "Company," "we," "our" and
"us" refer to MusclePharm Corporation and its subsidiaries.






Overview




MusclePharm is a scientifically-driven, performance lifestyle company that
develops, manufactures, markets and distributes branded sports nutrition
products and nutritional supplements. We offer a broad range of performance
powders, capsules, tablets, gels and on-the-go ready to eat snacks that satisfy
the needs of enthusiasts and professionals alike. Our portfolio of recognized
brands, MusclePharm® and FitMiss®, is marketed and sold in more than 100
countries globally. The Company is headquartered in Calabasas, California and,
as of December 31, 2020, had the following wholly-owned subsidiaries which do
not currently have operations: MusclePharm Canada Enterprises Corp., MusclePharm
Ireland Limited
and MusclePharm Australia Pty Limited.



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 ("FDM"), and Club retail channels, including Amazon, Costco, Kroger,
Walgreens, 7-Eleven, and many others. Our primary distribution channels are
Specialty, International and FDM.



Our consolidated financial statements are prepared using the accrual method of
accounting in accordance with generally accepted accounting principles in the
United States
("GAAP") and have been prepared on a going concern basis, which
contemplates the realization of assets and the settlement of liabilities in the
normal course of business.



During the fourth quarter of 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; and
4) negotiated and purchased certain raw materials directly from the
manufacturers lowering the costs of goods sold





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 throughout 2020. In April 2020, the Company experienced a
slowdown in sales from its retail customers, including its largest customer.
This decline was partially offset by a growth in sales to its 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 sustained profitability; however, the Company can give no
assurances that this will occur. In particular, fluctuations in the cost of
protein may have a material impact on the Company's profitability, as well as
the ability of our third-party manufacturers to meet our customer's demands. To
manage cash flow, the Company has entered into multiple financing arrangements.
For additional information, see Note 8 to the accompanying consolidated
financial statements.



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. There were no adjustments recorded in the financial
statements that might result from the outcome of these uncertainties.






18







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.



The COVID-19 pandemic has led federal and certain state and local governmental
authorities to issue stay-at-home orders, proclamations and/or directives aimed
at minimizing the spread of the infection. It is uncertain how long certain of
these measures will last or whether additional 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.






Outlook




As we continue to execute our growth strategy and focus on our core products, we
believe that we can, over time, continue to improve our operating margins and
expense structure. In addition, we have implemented plans focused on cost
containment, customer profitability, product and pricing controls that we
believe will improve our gross margin and reduce our losses.



We expect that our advertising and promotion expense will continue to decrease
as we focus on reducing our expenses and shifting our promotional costs, in
part, from general branding and product awareness to acquiring customers and
driving sales from existing customers. We expect that our discounts and
allowances will continue to decrease, both overall and as a percentage of
revenue, as we further reduce certain discretionary promotional activity that
does not result in a commensurate increase in revenues. In addition, we expect
our gross margin to increase in future periods due to a decrease in protein
prices which began in the fourth quarter of 2019, although protein prices will
continue to fluctuate.






19







Results of Operations



Comparison of the Year Ended December 31, 2020 to the Year Ended December 31,
2019




($ in thousands) For the Years Ended
December 31,
2020 2019 $ Change % Change
Revenue, net $ 64,440 $ 79,667 $ (15,227 ) (19 )%
Cost of revenue 44,831 70,979 26,148 (37 )
Gross profit 19,609 8,688 10,921 126
Operating expenses:
Advertising and promotion 507 2,487 (1,980 ) (80 )
Salaries and benefits 6,430 7,910 (1,480 ) (19 )
Selling, general and
administrative 7,139 9,792 (2,653 ) (27 )
Professional fees 2,764 3,606 (842 ) (23 )
Impairment of operating lease
right-of-use assets 167 - 167 -
Total operating expenses 17,007 23,795 (6,788 ) (29 )
Income (loss) from operations 2,602 (15,107 ) 17,709 (117 )
Other (expense) income:
Loss on settlement of
obligations (95 ) (125 ) 30 (24 )
Gain on settlement of payables 1,687 - 1,687 -
Interest and other expense, net (1,028 ) (3,609 ) 2,581 (72 )
Income (loss) before provision
for income taxes 3,166 (18,841 ) 22,007 (117 )
(Benefit) provision for income
taxes (19 ) 86 (105 ) (122 )
Net income (loss) $ 3,185 $ (18,927 ) $ 22,112 (117 )%





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






For the Years Ended
December 31,
2020 2019
Revenue, net 100 % 100 %
Cost of revenue 70 89
Gross profit 30 11
Operating expenses:
Advertising and promotion 1 3
Salaries and benefits 10 10
Selling, general and administrative 11 12
Professional fees 4 5
Impairment of operating lease right-of-use assets 0 0
Total operating expenses 26 30
Income (loss) from operations 4 (19 )
Other (expense) income:
Loss on settlement of obligations - -
Gain on settlement of payables 2 -
Interest and other expense, net (2 ) (5 )
Income (loss) before provision for income taxes 4 (24 )
Provision for income taxes - -
Net income (loss) 4 % (24 )%




20




Revenue, net




We derive our revenue through the sales of our various branded sports nutrition
products and nutritional supplements. Revenue is recognized when control of a
promised good is transferred to a customer in an amount that reflects the
consideration the Company expects to be entitled to in exchange for the 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.



Net revenue reflects the transaction prices for contracts, which includes goods
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 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.



MusclePharm brands are marketed across major global retail distribution channels
- Specialty, International, and Food, Drug, and Mass ("FDM"). Below is a table
of net revenue by our major distribution channel:






For the Years Ended December 31,
% of % of
2020 Total 2019 Total
Distribution Channel
Specialty $ 26,643 41 % $ 35,812 45 %
International 17,862 28 % 22,691 28 %
FDM 19,935 31 % 21,164 27 %
Total $ 64,440 100 % $ 79,667 100 %





Net revenue decreased $15.2 million, or 19%, to $64.4 million for the year ended
December 31, 2020, compared to $79.7 million for the year ended December 31,
2019
. Net revenue from our international customers decreased by $4.8 million, or
21%, year over year, primarily due to a general shift to domestic and online
marketing. Net revenue from FDM decreased $1.2 million, or 6%, and net revenue
from Specialty lines decreased $9.2 million, or 26%, year over year. The
decrease in Specialty was primarily due to lower sales volumes due to a
reduction in discounts offered to these customers, including one of our largest
e-commerce customers, whose revenues declined by 76% for 2020, as compared to
2019. During 2020, we increased our sales price to select customers, including
certain large customers, reduced expenditures on partnership advertising, online
impressions and click advertising with our online customers, while also reducing
end-aisle and front of the store promotions with our retail customers,
contributing to the revenue decline. Finally, we continue to monitor the
profitability of each customer, and in the event that customers have negative or
low margins, sales activities with such customers are reduced.



Discounts and sales allowances decreased to 22% of gross revenue, or $17.7
million
, for the year ended December 31, 2020 from 25% of gross revenue, or
$26.9 million for 2019. Discounts and sales allowances fluctuate based on
customer mix and changes in discretionary promotional activity. We will continue
to monitor our discounts and reduce where practical in order to continue to meet
our gross margin expectations.



During the year ended December 31, 2020, our three largest customers accounted
for approximately 70% of our net revenue. During the year ended December 31,
2019
, our three largest customers accounted for approximately 63% of our net
revenue.






21








Cost of Revenue and Gross Margin



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, which is operated by a third-party logistics provider.



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. Cost of revenue will continue
to fluctuate, primarily due to changes in protein prices, which prices are
impacted, in part, by our ability to negotiate better pricing with our
manufacturers. Protein prices increased for most of 2019, before declining at
the end of the year.



Costs of revenue decreased 37% to $44.8 million for the year ended December 31,
2020
, compared to $71.0 million for 2019. This decrease was due, in part, to
lower revenues, with gross revenue for the year ended December 31, 2020
decreasing 19% compared to the same period in 2019. In addition, during 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
year ended December 31, 2020 increased $10.9 million to $19.6 million compared
to $8.7 million for the same period in 2019. Gross profit was 30% of revenue,
net for the year ended December 31, 2020 compared to 11% for the same period in
2019. Positively impacting the gross profit percentage was a decrease of 3% in
promotional discounts, as a percentage of revenue, net, and a decrease in
protein prices for the year ended December 31, 2020 compared to the year ended
December 31, 2019, further contributing to the gross profit percentage increase.






Operating Expenses




Operating expenses for the year ended December 31, 2020 were $17.0 million,
compared to $23.8 million in 2019. Our operating expenses were 26% and 30% of
net revenue for the years ended December 31, 2020 and 2019, respectively. We
continue to focus on reducing our operating expenses in response to our
continued losses, including as discussed in "-Outlook." Changes to operating
expenses in 2020 were as follows:






Advertising and Promotion




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



Advertising and promotion expense decreased $2.0 million or 80% to $0.5 million
for the year ended December 31, 2020, or 1% of net revenue, compared to $2.5
million
, or 3% of net revenue, for 2019. The decrease was primarily due to
reduced club demonstrations and sports marketing, print and online advertising
and reduced giveaways.



The reductions in 2020 were 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.






Salaries and Benefits




Salaries and benefits consist primarily of salaries, bonuses, benefits and
stock-based compensation paid or provided to our employees.



Salaries and benefits continued to decrease primarily due to headcount
reductions and terminations, including certain higher salaried employees. This
decrease was offset, in part, by an increase in consulting fees to assist us in
preparing our delinquent annual and quarterly Securities and Exchange Commission
("SEC") filings for 2018, 2019 and the first three quarters of 2020.



Salaries and benefits decreased by $1.5 million or 19% to $6.4 million, or 10%
of net revenue, for the year ended December 31, 2020 compared to $7.9 million,
or 10% of revenue, for 2019.






22








Selling, General and Administrative



Our selling, general and administrative expenses consist primarily of
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, broker fees and other corporate
expenses.



Selling, general and administrative expenses decreased by 27% to $7.1 million,
or 11% of net revenue, for the year ended December 31, 2020 compared to $9.8
million
, or 12% of net revenue, for the same period in 2019. The decrease was
primarily due to lower freight costs, due in part to a reduction in shipping
rates for most of 2020, together with reduced travel expenses, depreciation,
research and development, office expenses and other general expenses. 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 and investor relations costs. Professional fees decreased 23% to
$2.8 million, or 4% of net revenue, for the year ended December 31, 2020,
compared to $3.6 million, or 5% of net revenue, for the same period in 2019.



The decrease was primarily due to reduced legal fees of $1.6 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 work performed which relate to the restated financial
statements filed with the SEC on August 25, 2020, and the filing of the first
three quarters of 2020 on November 24, 2020.



To the extent our ongoing legal matters are reduced, we expect to see a further
decline in legal costs for specific settlement activities. We intend to continue
to invest in strengthening our governance, internal controls, and process
improvements, which is expected to require support from third-party service
providers.






Settlement of obligations




We recorded settlement expenses of $0.1 million for each of the years ended
December 31, 2020 and 2019.



Gain on settlement of payables



On September 25, 2020, we entered into a settlement agreement with Nutrablend, a
manufacturer of MusclePharm products, pursuant to which we agreed to pay
approximately $3.1 million in monthly payments from September 1, 2020 through
June 30, 2023.



On December 16, 2020, we entered into a settlement agreement with Excelsior
Nutrition, a manufacturer of MusclePharm products, pursuant to which we agreed
to pay approximately $4.8 million in monthly payments beginning January 5, 2020
and thereafter until the settlement amount is paid in full.



We recorded $1.7 million as a gain on the settlement of these liabilities, the
result of the imputation of interest due to the long-term nature of the payouts.






23








Interest and other expense, net



For the years ended December 31, 2020 and 2019, "Interest and other expense,
net" consisted of the following (in thousands):






For the Year Ended December 31,
2020 2019

Interest expense, related party $ (329 ) $ (1,597 )
Interest expense, related party debt discount - (60 )
Interest income (expense), other 202 (894 )
Interest expense, secured borrowing arrangement (1,366 ) (1,205 )
Foreign currency transaction loss (8 ) (236 )
Other 473 383
Total interest and other expense, net $ (1,028 ) $ (3,609 )





"Other" includes sublease income and gain on disposal of fixed assets.



Interest and other expense, net for the year ended December 31, 2020 decreased
72% to $1.0 million, compared to 2019. The decrease was primarily due to the
Refinanced Convertible Note (as defined below), of which the principal balance
of $18.0 million was converted to common stock in September 2019, and the
reversal in 2020 of interest recorded in 2019 on past due balances with
Excelsior Nutrition and Nutrablend, which were both settled in 2020, with no
interest due.






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 carryforwards, 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 historically incurred significant losses and experienced
negative cash flows since inception. However, the Company generated net income
of $3.2 million for the year ended December 31, 2020. As of December 31, 2020,
the Company had cash of $2.0 million, an increase of $0.5 million from the
December 31, 2019 balance of $1.5 million. This increase is due to cash provided
by investing activities of $0.2 million and cash provided by financing
activities of $1.1 million, offset by cash used in operating activities of $0.9
million
.



The ability to continue as a going concern is dependent upon us maintaining
profitable operations in the future and/or obtaining the necessary financing to
meet our obligations and repay our liabilities when they come due. Management is
on an ongoing basis evaluating 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. There is no assurance that we will be able to obtain additional
financing on acceptable terms or at all or to generate an adequate level of
revenues.



During the fourth quarter of 2019, management implemented the following measures
to improve gross margin:






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; and
4) negotiated and purchased certain raw materials directly from the
manufacturers lowering the costs of goods sold




24




As a result of these measures, as well as a reduction in protein prices, the
Company realized increased gross margins in the fourth quarter of 2019, a trend
which continued throughout 2020. In April 2020, the Company experienced a
slowdown in sales from its retail customers, including its largest customer.
This decline was partially offset by a growth in sales to its 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.



Management believes reductions in operating costs, and continued focus on gross
margin, primarily pricing controls and a reduction in product discounts and
promotional activity with the Company's customers, will allow us to ultimately
achieve sustained profitability, however, we can give no assurances that this
will occur. In particular, fluctuations in the cost of protein may have a
material impact on the Company's profitability, as well as the ability of our
third-party manufacturers to meet our customer's demands.






Cash Flows




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






For the Years Ended December 31,
2020 2019
Consolidated Statements of Cash Flows Data:
Net cash used in operating activities $ (868 ) $ (6,524 )
Net cash provided by (used in) investing activities 218 (13 )
Net cash provided by financing activities 1,121 5,742
Effect of exchange rate changes on cash - 10
Net change in cash $ 471 $ (785 )




Operating Activities




Our cash used in operating activities is driven primarily by inventory
purchases, personnel-related expenditures, manufacturing costs, professional
fees (including legal and accounting fees), and other general expenses such as
rent and maintenance expenses. Our cash flows from operating activities is
expected to continue to be affected principally by 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 outflows improved $5.7 million for the year ended December
31, 2020
, due to a decrease in net cash used in operating activities to $0.9
million
for the year ended December 31, 2020, compared to a net cash used of
$6.5 million for 2019.



During the year ended December 31, 2020, net cash used in operating activities
of $0.9 million primarily relates to net income of $3.2 million, adjusted for
non-cash charges, which resulted in a source of cash of $2.4 million. This was
offset, in part, by a net change in net operating assets and liabilities, which
resulted in a use of cash of $3.3 million for the year ended December 31, 2020.
Included in the change in net operating assets and liabilities was a decrease in
our accounts payable and accrued liabilities balance of $4.7 million and an
increase in our accounts receivable balance of $2.9 million, partially offset by
a decrease in our inventory balance of $3.8 million.



During the year ended December 31, 2019, the net cash used in operating
activities of $6.5 million primarily relates to net loss of $18.9 million,
adjusted for non-cash charges, which resulted in a use of cash of $16.9 million,
and a net change in net operating assets and liabilities, which resulted in a
source of cash of $10.4 million. Included in the change in net operating assets
and liabilities was a decrease in our inventory balance of $8.9 million and a
decrease in our accounts receivable balance of $1.4 million.






25







Investing Activities




Cash provided by investing activities was $0.2 million for the year ended
December 31, 2020, which relates primarily to proceeds from disposal of property
and equipment of $0.2 million.



Cash used in investing activities was $13,000 for the year ended December 31,
2019
for the purchases of property and equipment.






Financing Activities




Cash provided by financing activities was $1.1 million for the year ended
December 31, 2020, primarily due to net borrowings from our secured borrowing
arrangement of $2.7 million, receipt of the Paycheck Protection Program loan of
$1.0 million, net payments on our line of credit of $2.2 million.



Cash provided by financing activities was $5.7 million for the year ended
December 31, 2019, primarily due to net borrowings from our line of credit of
$2.7 million and net borrowings from our secured borrowing arrangement of $3.2
million
.



To manage cash flow, we have entered into numerous financing arrangement
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.



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.






26








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.



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.






27








All outstanding principal and accrued but unpaid interest under the 2020
Refinanced Convertible Note were due and payable on November 1, 2020. The Note
was in default on that date and the Company agreed with Mr. Drexler to amend the
2020 Refinancing by the end of November 2020. Interest accrued but unpaid,
totaling $26,000 was capitalized on the due date and added to the principal
amount of the 2020 Refinanced Convertible Note.



On November 29, 2020, the Company entered into a refinancing agreement with Mr.
Ryan Drexler, (the "November 2020 Refinancing"), in which the Company issued to
Mr. Drexler an amended and restated convertible secured promissory note (the
November 2020 "Convertible Note") in the original principal amount of
$2,871,967, which amended and restated a convertible secured promissory note
dated as of August 21, 2020. The $2.9 million November 2020 Convertible Note
bears interest at the rate of 12% per annum. Unless earlier converted or repaid,
all outstanding principal and any accrued but unpaid interest under the November
2020
Convertible Note shall be due and payable on July 1, 2021. Any interest not
paid when due shall be capitalized and added to the principal amount of the
November 2020 Convertible Note and bear interest on the applicable interest
payment date along with all other unpaid principal, capitalized interest, and
other capitalized obligations.



Mr. Drexler may, at any time, and from time to time, upon written notice to the
Company, convert the outstanding principal and accrued interest into shares of
Common Stock, at a conversion price of $0.23 per share. At the election of the
Company, one-sixth of the interest may be paid in kind ("PIK Interest") by
adding such amount to the principal amount of the note, or through the issuance
of shares of the Company's common stock to Mr. Drexler. The PIK Interest is
convertible to common stock at the closing price per share on the last business
day of each calendar quarter. In no event will the conversion price of such PIK
Interest be less than $0.10. The Company may prepay the Note by giving Mr.
Drexler
between 15- and 60-days' notice depending upon the specific
circumstances, subject to Mr. Drexler's conversion right. The Company intends to
pay all interest due on the Convertible Note to Mr. Drexler at the end of each
calendar quarter.



The November 2020 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 November 2020 Refinanced Convertible Note. The
November 2020 Convertible Note is subordinated to certain other indebtedness of
the Company held by Prestige Capital Corporation ("Prestige") and Crossroads
Financial Group, LLC
("Crossroads").



For the years ended December 31, 2020 and 2019, interest expense related to the
related party convertible secured promissory notes was $0.3 million and $1.7
million
, respectively. During the years ended December 31, 2020 and 2019,
interest paid in cash to Mr. Drexler was $31,000 and $0.8 million, respectively.



Related Party Secured Revolving Promissory Note



On October 15, 2020, 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% 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.



As of December 31, 2020, the outstanding balance on the revolving note was $0.7
million
. During the year ended December 31, 2020, interest paid in cash to Mr.
Drexler
was $24,000.






28








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.



During the year, the Company made payments of $3 million to Crossroads and had
no outstanding liability as of December 31, 2020. As of December 31, 2019, we
owed Crossroads $3.0 million, and the amount is included in "Line of credit" in
the consolidated balance sheets.



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 the amount the Company can borrow was increased from $3.0 million
to $4.0 million.



On February 26, 2020, the Company and Crossroads further 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.



On October 30, 2020, the Company paid off the loan, including an early
termination fee of $0.1 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 from 0.7% to 4%, 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.



At December 31, 2020 and 2019, we had outstanding borrowings of approximately
$7.1 million and $4.4 million, respectively.



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.






29








For the years ended December 31, 2020 and 2019, the Company assigned to
Prestige, accounts with an aggregate face amount of approximately $58.0 million
and $55.1 million, respectively, for which Prestige paid to the Company
approximately $46.4 million and $44.1 million, respectively, in cash. During the
years ended December 31, 2020 and 2019, $43.7 million and $40.9 million,
respectively, was repaid to Prestige, including fees and interest.



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
December 31, 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.



Off-Balance Sheet Arrangements



We did not have any off-balance sheet arrangements as of December 31, 2020.






Non-GAAP Adjusted EBITDA




In addition to disclosing financial results calculated in accordance with GAAP,
this Form 10-K discloses Adjusted EBITDA, which is net loss adjusted for
stock-based compensation, gain on settlement of accounts payable, (gain) loss on
disposal of property and equipment, amortization of prepaid sponsorship fees,
interest and other expense, net, depreciation of property and equipment,
amortization of intangible assets, provision for doubtful accounts, and
(benefit) provision for income 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,
gain on settlement of payables and impairment of assets, 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.



The GAAP measure most directly comparable to Adjusted EBITDA is net income
(loss). The non-GAAP financial measure of Adjusted EBITDA should not be
considered as an alternative to net income (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 income (loss) and is defined
differently by different companies, our definition of Adjusted EBITDA may not be
comparable to similarly titled measures of other companies.






30








Set forth below are reconciliations of our reported GAAP net income (loss) to
Adjusted EBITDA (in thousands):






Year ended Year ended
Dec. 31, 2020 Dec. 31, 2019
Net income (loss) $ 3,185 $ (18,927 )

Non-GAAP adjustments:
Stock-based compensation 144 284
(Gain) loss on disposal of property and
equipment (160 ) 5
Gain on settlement of payables (1,687 ) -
Interest and other expense, net 1,188 3,609
Depreciation and amortization of property and
equipment 145 339
Amortization of intangible assets 320 320
Impairment of operating lease right-of-use
assets 167 -
Bad debt expense 172 21
(Benefit) Provision for income taxes (19 ) 86

Adjusted EBITDA $ 3,455 $ (14,263 )





Critical Accounting Policies and Estimates



Our consolidated financial statements have been prepared in accordance with GAAP
and form the basis for the following discussion and analysis on critical
accounting policies and estimates. The preparation of the consolidated financial
statements requires us to make estimates and assumptions that affect the
reported amounts of assets, liabilities, revenues and expenses, and related
disclosure of contingent assets and liabilities. We evaluate our estimates and
assumptions on a regular basis. We base our estimates on historical experience
and on various other assumptions that are believed to be reasonable under the
circumstances, the results of which form the basis for making judgments about
the carrying values of assets and liabilities that are not readily apparent from
other sources. Actual results could differ from these estimates and those
differences could have a material effect on our business, financial condition
and results of operations.






Revenue Recognition




Our revenue represents sales of finished goods inventory and is recognized when
control of the promised goods 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. The reserves for trade promotions and
product discounts, including sales incentives, are established based on our best
estimate of the amounts necessary to settle future and existing credits for
product sold as of the balance sheet date.



All such costs are netted against sales. These costs include end-aisle or other
in-store displays, contractual advertising fees and product discounts, and other
customer specific promotional activity. We provide reimbursement to our
customers for such amounts as credits against amounts owed. 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.






31








For the years ended December 31, 2020 and 2019, our revenue is recorded net of
discounts, and to a lesser degree, sales returns, where discounts for each year
totaled $17.4 million and $26.9 million, respectively. For the years ended
December 31, 2020 and 2019, total discounts accounted for 21% and 25% of gross
revenue, respectively.






Leases




A lease is defined as a contract, or part of a contract, that conveys the right
to control the use of identified assets for a period of time in exchange for
consideration. An entity controls the use when it has a right to obtain
substantially all of the benefits from the use of the identified asset and has
the right to direct the use of the asset. The Company determines if an
arrangement is a lease at contract inception. For all classes of underlying
assets, the Company includes both the lease and non-lease components as a single
component and accounts for it as a lease. Lease liabilities are recognized based
on the present value of the lease payments over the lease term at the
commencement date.



MusclePharm calculates and uses the rate implicit in the lease if the
information is readily available, or if not available, the Company uses its
incremental borrowing rate in determining the present value of lease payments.
Lease right-of-use ("ROU") assets are based on the lease liability, subject to
adjustments, such as lease incentives. The ROU assets also include any lease
payments made at or before the commencement date. MusclePharm excludes variable
lease payments in measuring lease assets and lease liabilities, other than those
that depend on an index or a rate or are in substance fixed payments.



MusclePharm's lease terms include options to extend or terminate the lease when
it is reasonably certain that such options will be exercised. Operating leases
are included in "Operating lease right-of-use assets," "Operating lease
liability, current" and "Operating lease liability, long-term" on the
consolidated balance sheets. Finance leases are included in "Property and
equipment, net," "Accrued and other liabilities" and "Other long-term
liabilities" on the consolidated balance sheets.






Advertising and Promotion




Our advertising and promotion expenses consist primarily of digital, print and
media advertising, athletic endorsements and sponsorships, promotional
giveaways, trade show events and various partnering activities with our trading
partners, and are expensed as incurred. For major trade shows, the expenses are
recognized within a calendar year over the period in which we recognize revenue
associated with sales generated at the trade show. Some of the contracts provide
for contingent payments to endorsers or athletes based upon specific achievement
in their sports, such as winning a championship. We record expense for these
payments if and when the endorser achieves the specific achievement.






Contingencies




The Company records loss contingencies when management determines that the
outcome of future events is probable of occurring and when the amount of the
loss can be reasonably estimated. Gain contingencies are recognized in the
consolidated financial statements when they are realized. The determination of
an accrual for a loss contingency is based on management's judgment and
estimates with respect to the likely outcome of the matter. Liabilities are
recorded or adjusted when events or circumstances cause these judgments or
estimates to change.



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.



See additional information in "Note 9. Commitment and Contingencies."



Recently Issued Accounting Pronouncements



See Note 2 to the accompanying consolidated financial statements for a
discussion of recent accounting pronouncements or changes in accounting
pronouncements that are of significance, or potential significance, to us.

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