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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

 

FORM 10-K

 

x ANNUAL REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended: December 31, 2011

 

¨ TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

 

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.)

 

4721 Ironton Street, Building A

Denver, CO 80239

(Address of principal executive offices)

 

(303) 396-6100
(Registrant’s telephone number, including area code)

 

Securities registered under Section 12(b) of the Exchange Act: None

 

Securities registered under Section 12(g) of the Exchange Act: Common Stock, par value $0.001 per share

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨No x

 

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

 

Indicate by checkmark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨

 

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

 

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

 

Large accelerated filer ¨   Non-accelerated filer ¨
         
Accelerated filer ¨   Smaller reporting company x

 

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

 

The aggregate market value of registrant’s voting and non-voting common equity held by non-affiliates (as defined by Rule 12b-2 of the Exchange Act) computed by reference to the average bid and asked price of such common equity on June 30, 2011, was $5,637,180. As of April 13, 2012, the registrant has one class of common equity, and the number of shares outstanding of such common equity was 1,444,521,399.

 

 
 

 

TABLE OF CONTENTS

 

PART I   1
       
Item 1. Business.   1
Item 1A. Risk Factors.   10
Item 1B. Unresolved Staff Comments.   16
Item 2. Properties.   16
Item 3. Legal Proceedings.   16
Item 4. Mine Safety Disclosures.   17
     
PART II   18
       
Item 5. Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.   18
Item 6. Selected Financial Data.   19
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.   19
Item 7A Quantitative and Qualitative Disclosures About Market Risk.   25
Item 8. Financial Statements and Supplementary Data.   25
Item 9. Changes In and Disagreements With Accountants on Accounting and Financial Disclosure.   25
Item 9A. Controls and Procedures.   25
Item 9B. Other Information.   26
       
PART III     27
       
Item 10. Directors, Executive Officers and Corporate Governance.   27
Item 11. Executive Compensation.   31
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.   35
Item 13. Certain Relationships and Related Transactions, and Director Independence.   36
Item 14. Principal Accounting Fees and Services.   38
       
PART IV     39
       
Item 15. Exhibits, Financial Statements Schedules.   39
       
SIGNATURES   42

 

 
 

 

PART I

 

Item 1. Business.

 

General

 

Headquartered in Denver, Colorado, MusclePharm Corporation (“MusclePharm” or the “Company”) is an expanding healthy lifestyle company that develops and manufactures a full line of scientifically approved (NSF International approved) nutritional supplements that are 100% free of any banned substances. Based on years of research, MusclePharm products are created through an advanced six-stage research protocol involving the expertise of top nutritional scientists. These products are field tested by more than 100 elite professional athletes from various sporting organizations including the National Football League, mixed martial arts, and Major League Baseball. The Company’s award-winning proprietary products address all categories of an active lifestyle including, muscle building, weight loss and maintaining general fitness through a daily nutritional supplement regimen. MusclePharm is a marketing and branding company. It does not directly manufacturer or ship to end user customers. We extend and market the brand while innovating and distributing new products. Our customers are re-sellers of our products.

 

The Company’s headquarters in Denver, CO, features has a state-of-the-art exercise and weight lifting facility, with a full size octagon UFC™ fighting cage, an indoor football field, cardio work-out equipment and a state-of-the-art on-site medical department, complete with equipment for measuring and conducting clinical studies and supporting athletes. A staff team of medical and clinical professionals is on hand to assist with training. MusclePharm products are sold in over 120 countries and available in over 10,000 U.S. retail outlets, including Wal-Mart, Dicks Sporting Goods, GNC, Vitamin Shoppe, and Vitamin World. The Company also sells its products in over 100 online stores, including bodybuilding.com, amazon.com and vitacost.com.

 

Business Strategy

 

Our primary focus at the current time is on the following:

 

(1)Increase our distribution and sales through domestic and international growth and market penetration;

 

(2)Conduct additional testing of the safety and efficacy of our products and create new products; and

 

(3)Create marketing and branding opportunities through endorsements, sponsorships and brand extensions to increase brand awareness.

 

The Sports Nutrition and High Energy Supplement Market

 

The sports nutrition and high energy supplement market is comprised of sports beverages, sports food and sports supplements. According to BCC Research’s 2008 Global Research Report, sports beverages maintain the largest market share, with approximately $24.9 billion in annual sales in 2007. The sports food segment had approximately $1.2 billion in annual sales and the sports supplement segment saw 2007 annual sales of approximately $1.1 billion. BCC projected that the sports supplement market would reach $2.3 billion by 2013.

 

According to BCC Research, the United States is the largest consumer market for sports nutrition products, with annual sales reaching approximately $22 billion in 2007, and projected sales of $29 billion in 2013. Western Europe and Japan are the second and third largest consumers. The key market drivers for sports nutrition products are taste, price, variety and brand loyalty. In recent years, the consumption of sports nutrition products has shifted to mainstream consumers who have become the key drivers of growth within the industry.

  

Current Products

 

We currently offer seventeen (17) high-quality, specially-formulated, athlete-focused supplement products. These include: Assault™, Armor-V, Battle Fuel™, Bullet Proof®, Combat Powder®, MuscleGel®, Shred Matrix®, Re-con®, BCAA 3:1:2™, Glutamine™, Creatine™, Casein™, CLA Core™, ZMA Max™, Hybrid - NO™. We also offer the private label products Recover Elite™ and Perform Elite™ under the MMA Elite™ name. These are distributed directly to Wal-Mart and Walgreens. Our products are comprised of amino acids, herbs and proteins scientifically tested and proven as safe and effective for the overall health of athletes. These nutritional supplements were created to enhance the effects of workouts, repair muscles, and nourish the body for optimal physical fitness. The following is a brief description of each of our products:

 

1
 

 

Assault™

 

Pre-Performance Amplifier

 

·Fuel power for long-lasting energy;
·Enhance focus; and
·Build lean muscle mass.

 

Assault™ helps fight fatigue, boost performance, build muscle, increase intensity, hydrate muscles and feed them valuable, clinically-proven nutrients like ConCrete, Beta Alanine, BCAAs and Cinnulin. Our team of sports medicine specialists worked with top professional athletes to create a safe pre-workout that increases strength, aerobic and anaerobic performance, reduces stomach fat and meets all regulations when it comes to being free of banned substances. Assault™ is specifically designed for performance-boosting pre-workout power.

 

Battle Fuel™

 

Maximizes Workout Performance with No Side Effects

 

·Increases aggression and focus;
·Boosts testosterone and feeds anabolism; and
·promotes cellular health and recovery.

 

Battle Fuel™ helps athletes increase lean mass and strength, improve endurance and energy levels, naturally detoxify and enhance aggressive mental focus. Battle Fuel™ is an herbal formula that improves testosterone levels to drive strength, power and lean muscle mass development. An intense combination of cleansing agents and natural elements reduce fatigue and improve cellular immunity.

 

Bullet Proof™

 

Advanced Nighttime Recovery System

 

·Promotes deep sleep to maximize repair;
·Optimizes anabolic/anti-catabolic environment; and
·Stimulates growth hormone/testosterone output.

 

Bullet Proof™ helps increase recovery effectiveness and hormonal up-regulation, improve lean muscle tissue growth and help relieve some forms of pain. Deep nourishing sleep is an athlete’s best friend for the long-term building of strength, mass and speed. During this rest period, key ingredients like our proprietary blend of essential amino acids, Beta Alanine and zinc magnesium aspartate (ZMA) are hard at work repairing tissue and staving off muscle breakdown. Other ingredients boost your immune system and reduce swelling, preparing the body for that next hard workout.

 

Combat™

 

Feeds Muscle Up To 8 Hours

 

·Technologically advanced protein super-food;
·Enhances digestion of nutrients; and
·Maximizes adaptive response to hard training.

 

Combat™ helps you: receive 25 grams of high quality protein, fuel fat loss, support healthy body composition, nourish lean muscle and speed recovery. Combat™ is designed to help fill that gap in nutrition many athletes and super-active people experience, to ensure their bodies are growing and recovering. The staggered absorption rate of the five different protein components guarantees a complete 8-hour nutrient infusion.

 

2
 

 

Re-con®

 

Post-Workout Recharger

 

·Optimize an athlete’s “anabolic window”;
·Promote post workout growth & repair; and
·Replenish vital nutrients.

 

Re-con® helps athletes recover quicker and more effectively, repair muscle cells, feed the body nutrients and grow stronger with ingredients like base-change amino acids (BCAAs), essential amino acid complexes (EAAs), cellular detoxifiers, muscle-loading carbohydrates and stress hormone regulators. This maximizes an athlete’s anabolic window, the post-workout phase where the body repairs and rebuilds tissue. Re-con® nourishes and promotes growth from every angle, delivering proteins and nutritious elements in their ideal forms. Recon® provides muscle reconstruction nutrition.

 

MuscleGel®

 

Delicious On-The-Go Protein and Nutrition

 

·Stay leaner and be healthier;
·Proteins absorbs into the athlete’s body easier; and
·Nutritious and easy to enjoy.

 

MuscleGel® helps athletes receive more of the nutrients the body needs every day, shed pounds and fat and enjoy the convenience of the ready-to-eat packs. Packed full of different proteins like “building block” amino acids, MuscleGel’s® patented gel format yields a fast-absorbing, highly bio-available source of next generation fitness food. For protein, carbohydrates and vitamins, MuscleGel® delivers. It works on-the-go, fills you up quickly and streams right to those parts of the athlete’s body where nutrients are needed most.

 

SHRED Matrix®

 

Multi-Level Weight Loss System

 

·Ramps up your metabolism;
·Suppresses hunger and cravings; and
·Burns fat through all-natural herbs.

 

SHRED Matrix® helps burn fat naturally, counteract mood swings and help athletes stay focused on weight loss and results. This 8-Stage Weight Loss System is for people who exercise regularly. As a total body diet, it sheds pounds, burns fat cells and attacks fat loss from every angle. Proven ingredients like Sugar Stop™ and the enzyme aid matrix also keep your appetite in check. The formula is tuned so athletes won’t experience “jitters” or a crash.

 

Armor-V™

 

Advanced Multi-Vitamin Complex

 

·Complete source of vitamins and minerals;
·Total immune system support; and
·Added B vitamins and probiotics.

 

Armor-V™ helps athletes receive a full dose of important vitamins and minerals, keep vital organs like the liver clean of toxins, recover faster and keep the body’s hormones balanced. This system was designed to meet the standards of professional athletes, who need a dedicated source of vitamins and minerals. Loaded with anti-oxidants and system optimizers derived from fruits and vegetables, Armor V™ brings together organic, herbal and natural ingredients into a multi-nutrient complex that benefits active bodies.

 

3
 

 

BCAA™

 

Rapidly Absorbed Branched Chain Amino Acid Complex

 

·Delivers BCAAs before and after workout;
·Minimizes muscle damage; and
·100% pharmaceutical grade.

 

BCAA™ helps you: receive ideal amounts of BCAAs, Leucine, Isoleucine and Valine from this patented ratio of 3:1:2, promote muscle development and maintenance, increase lean body mass and spur weight loss. BCAAs are part of the group of essential amino acids a body needs. Our patented 3:1:2 ratio is designed to release the ideal amounts of each amino acid both before and after a workout. This prevents muscle breakdown and leads to gains in body mass without losing weight.

 

Creatine

 

Five Superior Blends of Creatine

 

·Promote strength, power and endurance;
·No loading; and
·100% pharmaceutical quality.

 

MusclePharm MP Core Series Creatine™ increases creatine status by enhancing uptake and bioavailability and also fuels stamina, strength and lean muscle growth. Many athletes who engage in high-intensity/short duration exercises like weightlifting use creatine. The clinically-proven ingredient Cinnulin heightens absorption, which assists our five pure and diverse creatine complexes, delivering a range of benefits launched directly into muscles. MP Creatine™ increases explosive energy, ATP energy and overall power.

 

ZMA Max™

 

Anabolic Mineral Support Formula with Fenugreek®

 

·Increases testosterone;
·Promotes deep, healing sleep; and
·Supports healthy libido function

 

MusclePharm ZMA Max™ supports muscle growth and recovery, promotes deeper and more efficient sleep to maximize healing, tissue repair, anabolic hormone production and testosterone levels. It delivers the benefits of precise dosages and ZMA ingredient ratios, and adds the synergistic effects of clinically-proven Fenugreek® to support the balance of cholesterol levels as well as increase of healthy libido function in women and men.

 

CLA Core™

 

Supports Healthy Body Composition

 

·Aids in weight loss;
·Increases metabolic rates; and
·Reduces body fat

 

CLA Core™ supports energy sources for hard-training people on low-carb diets, induces muscle gains without buildup of fatty tissue, and helps protect the joints. CLA is a high-quality linoleic acid that is naturally occurring and helps you feel healthy and energized. Many researchers believe that this fatty acid also helps reduce body fat and increase muscle mass. CLA Core is a blend of Omega-6 and medium-chain triglycerides (MCTs).

 

4
 

 

Casein™

 

100% Micellar Casein Protein

 

·Delivers 25g of protein;
·Serves as ideal nighttime protein source; and
·Doubles as digestive enzyme and probiotic blend.

 

Casein delivers a steady, prolonged release of amino acids, works hard while body is at rest and promotes added nutrient utilization through the natural enzymes. As a slow digesting protein, Casein repairs and rebuilds muscle at night while you are asleep—feeding your muscles even hours after you went to bed. The great-tasting shake also works overtime readying you for that next day’s workout.

 

Hybrid N.O.™

 

Nitric Oxide Amplifier

 

·Dramatically enhance muscle pumps
·Increase muscle fullness and vascularity
·Maximize vasodilation

 

Hybrid N.O.™ promotes muscle pumps through enhanced vasodilation, utilizes GlycoCarn™, a scientifically-researched nitric oxide booster, and encourages blood flow throughout the muscles. Hybrid N.O. promotes higher exercise tolerance by increasing levels of plasma nitrite and nitrate, which increases systemic nitric oxide bioavailability. Hybrid N.O. delivers maximum muscle pumps and increased health.

 

Glutamine

 

Rapidly Absorbed Glutamine Complex

 

·Increase recovery time;
·Enhance muscle growth; and
·100% pharmaceutical grade.

 

MusclePharm Core Series MP Glutamine™ supplement increases whole body glutamine status by enhancing an athlete’s uptake, bioavailability and digestion. Feeding the body a dedicated source of glutamine ultimately provides optimal muscle-tissue saturation through an exclusive array of three pure, yet diverse nutritional glutamine complexes that deliver a substantial range of benefits. MP Glutamine™ helps athletes rehydrate, rebuild and recover from even the toughest of workouts quicker and more efficiently.

 

PERFORM Elite™

 

Pre-Performance Amplifier

 

·Fuel power for long-lasting energy;
·Increase strength & endurance;
·Enhance focus & intensity; and
·Build lean muscle mass.

 

Perform Elite™ helps: fight fatigue, boost performance, build muscle, amp up intensity, hydrate muscles and feed muscle cells the nutrients they need. People need a pre-workout supplement because it prepares them to stay focused, energetic and fully-powered from start to finish. In Perform Elite™, ingredients like creatine and beta alanine feed muscle cells the nutrients they need to grow bigger and stronger. Without a pre-workout like Perform Elite™, muscles don’t have the building blocks they need to gain size and strength.

 

5
 

 

RECOVER Elite™ (540g)

 

Post-Workout Recharger

 

·Optimize athletes’ “muscle building”;
·Promote post workout growth & repair;
·Replenish vital nutrients; and
·Speed recovery time.

 

Recover Elite™ helps athletes recover quicker and more effectively, repair muscle cells, maintain nutrient levels and grow bigger and stronger. When people work out, their muscle cells break down. In that post-workout period, it is important to feed these cells a supply of the right nutrients like the ones in Recover Elite™, so they can rebuild properly. When this is done correctly, muscles become both stronger and larger. If you don’t use a post-workout supplement, these cells don’t have the building blocks they need to recover and you won’t increase size or strength.

 

Future Products

 

We have trademarked and registered an energy product for active lifestyles and competitive athletes, under the name Energel®. This product will be distributed primarily via internet sales, convenience stores, cycling shops, ski shops, and fitness and runner shoes retail sales stores by the end of the second quarter of 2012.

 

Sales & Distribution

 

We sell our products both domestically and internationally. With respect to domestic sales, we have three traditional distribution systems:

 

1)Approximately 40% of sales are through a domestic Internet site named Bodybuilding.com (“Body Building”), which is the largest online retailer of sports nutrition products in the United States.  Body Building awarded MusclePharm the title of the “Breakout Brand,” “Best Packaging” and “Best New Product for Assault” in 2011 and MusclePharm is now the number two best-selling brand on BB.com, and has two products in their top ten best sellers, and eight products in the top fifty selling products out of over 14,000 sku’s. In addition to Body Building.com, we also sell domestically through several distributors and over 100 Internet sites;

 

2)We sell through traditional brick and mortar stores, and are carried in approximately 450 The Vitamin Shoppes outlets and we sell our products into over 5000 GNC stores, and we are in 400 Vitamin World retail stores;

 

3)We have regional salesmen that support wholesale distributors like Europa, selling in up to 15,000 smaller retail or regional stores.  We also work with other large distributors who have begun to place the Company’s product in small retail stores and gyms across the United States. Internationally, we are expanding rapidly into Central America, Mexico, Brazil, the Middle East, Europe, Russia, and the UK, and have Sportika Export as our international distributor that services over 120 countries.

 

In addition, we just recently launched a partnership with Eurpac to distribute our line of products to U.S. military bases and stores all over the world.

 

Marketing Strategy

 

Our core marketing strategy is to brand MusclePharm as the “must have” nutritional supplement line for high performance athletes. We want to be known as the athlete’s company, run by athletes who create their products for other athletes both professional and otherwise. We have endorsements from over 50 UFC fighters, well-known NFL players, as well as top X-Game and fitness athletes. Athletes are considered role models and many people strive to emulate their fitness and well-being regimen. Athlete sponsorships are the most logical tactic for our business. The objective of these athletic endorsements is to build both consumer awareness and confidence and to drive consumer demand for our products.

 

6
 

 

MusclePharm in 2011 became the Official Supplement Provider and Sponsor of the Ultimate Fighting Championship (“UFC”). Our agreement includes prominent logo placement on the mat, and our branding can be seen on Fox and pay-per-view worldwide.

 

The fighters we sponsor feature our brand on their uniforms and we also extensively advertise at the Ultimate Fighting Championship events. In 2011, we launched a state-of-the-art website that will tap into the social networking world, further expanding our brand and consumer awareness.

 

The Company is also currently engaged in various in-store promotions, including point-of-purchase stands, aisle displays in our retail outlets, as well as sample demonstrations and athlete appearances in Wal-Mart, GNC, Vitamin World and Vitamin Shoppe locations.

 

Research and Development

 

Each and every product sold by MusclePharm is the end result of a long development process involving leading nutrition scientists, doctors, and top professional athletes.

 

Manufacturing and Product Quality

 

We are committed to producing and selling highly efficacious products that are trusted for their quality and safety. To date, our products have been outsourced to a third party manufacturer where the products are manufactured in full compliance with the Good Manufacturing Practice standards set by the Food & Drug Administration.

 

Trademarks and Patents

 

We regard our trademarks and other proprietary rights as valuable assets and believe that protecting our key trademarks is crucial to our business strategy of building strong brand name recognition. These trademarks are crucial elements of our business, and have significant value in the marketing of our products.

 

Our policy is to pursue registrations for all of the trademarks associated with our products.  Federally registered trademarks have a perpetual life, provided that they are maintained and renewed on a timely basis and used correctly as trademarks, subject to the rights of third parties to attempt to cancel a trademark if priority is claimed or there is confusion of usage. We rely on common law trademark rights to protect our unregistered trademarks.  Common law trademark rights generally are limited to the geographic area in which the trademark is actually used, while a United States federal registration of a trademark enables the registrant to stop the unauthorized use of the trademark by any third party anywhere in the United States. Furthermore, the protection available, if any, in foreign jurisdictions may not be as extensive as the protection available to us in the United States.

 

Although we seek to ensure that we do not infringe on the intellectual property rights of others, there can be no assurance that third parties will not assert intellectual property infringement claims against us.

 

Competition

 

The sports nutrition business is highly competitive. Competition is based primarily on quality and assortment of products, marketing support, and availability of new products. Currently, our main competitors are three private companies: Optimum Nutrition, Inc. (“Optimum”), Iovate Health Sciences, Inc. (“IHS”), and Bio-Engineered Supplements and Nutrition, Inc. (“BSN”). Optimum is a wholly owned subsidiary of Glanbia Nutritionals, Inc., an international nutritional ingredients group. Optimum owns and operates two brands of nutritional supplements (Optimum Nutrition and American Body Building), providing a line of products across multiple categories. IHS is a nutritional supplement company that delivers a range of products to the nutritional marketplace. Headquartered in Oakville, Ontario, Canada, IHS’s line of products can be found in major retail stores and include such brands as Hydroxy-Cut™, Cell-Tech™, Six Star Nutrition™. BSN is also a sports nutrition leader whose top products include No-Explode™ and Syntha Six Protein™.

 

MusclePharm intends to compete by aggressively marketing our brand, emphasizing our relationships with professional athletes, and maximizing our relationships with those athletes, retail outlets and industry publications that align with our vision. We also tout the strength of the science behind MusclePharm products, as this is a key point of difference.

 

7
 

 

Regulatory Matters

 

The manufacture, packaging, labeling, advertising, promotion, distribution and sale of our products are subject to regulation by numerous governmental agencies. Our products are subject to regulation by, among other regulatory entities, the Consumer Product Safety Commission (CPSC), the U.S. Department of Agriculture (USDA), the Environmental Protection Agency (EPA) and the U.S. Food and Drug Administration (FDA). Advertising and other forms of promotion and methods of marketing are subject to regulation primarily by the U.S. Federal Trade Commission (FTC), which regulates these activities under the Federal Trade Commission Act (FTCA). The manufacture, labeling and advertising of our products are also regulated by various state and local agencies as well as those of each foreign country to which we distribute our products.

 

The Dietary Supplement Health and Education Act of 1994 (DSHEA) revised the provisions of the Federal Food, Drug, and Cosmetic Act (FFDC Act) concerning the regulation of dietary supplements.  All of the products we market are regulated as dietary supplements under the FFDC Act.

 

Under the current provisions of the FFDC Act, there are four categories of claims that pertain to the regulation of dietary supplements. Health claims are claims that describe the relationship between a nutrient or dietary ingredient and a disease or health related condition and can be made on the labeling of dietary supplements if supported by significant scientific agreement and authorized by the FDA in advance via notice and comment rulemaking.  Nutrient content claims describe the nutritional value of the product and may be made if defined by the FDA through notice and comment rulemaking and if one serving of the product meets the definition.  Statements of nutritional support or product performance, which are permitted on labeling of dietary supplements without FDA pre-approval, are defined to include statements that: (i) claim a benefit related to a classical nutrient deficiency disease and disclose the prevalence of such disease in the United States; (ii) describe the role of a nutrient or dietary ingredient intended to affect the structure or function in humans; (iii) characterize the documented mechanism by which a dietary ingredient acts to maintain such structure or function; or (iv) describe general well-being from consumption of a nutrient or dietary ingredient.  In order to make a nutritional support claim, the marketer must possess adequate substantiation to demonstrate that the claim is not false or misleading and if the claim is for a dietary ingredient that does not provide traditional nutritional value, prominent disclosure of the lack of FDA review of the relevant statement and notification to the FDA of the claim is required.  Drug claims are representations that a product is intended to diagnose, mitigate, treat, cure or prevent a disease.  Drug claims are prohibited from use in the labeling of dietary supplements.

 

Claims made for our dietary supplement products may include statements of nutritional support and health and nutrient content claims when authorized by the FDA or otherwise allowed by law.  The FDA’s interpretation of what constitutes an acceptable statement of nutritional support may change in the future, thereby requiring that we revise our labeling. In addition, a dietary supplement that contains a new dietary ingredient (i.e., one not on the market before October 15, 1994) must have a history of use or other evidence of safety establishing that it is reasonably expected to be safe. The manufacturer must notify the FDA at least 75 days before marketing products containing new dietary ingredients and provide the FDA the information upon which the manufacturer based its conclusion that the product has a reasonable expectation of safety. There is no assurance that the FDA will accept the evidence of safety for any new dietary ingredients that we may wish to market, and the FDA’s refusal to accept that evidence could prevent the marketing of the new dietary ingredients and dietary supplements containing a new dietary ingredient.

 

Our dietary supplements must comply with the Dietary Supplement and Nonprescription Drug Consumer Protection Act, which became effective on December 22, 2007. This Act amends the FFDC Act to mandate the reporting of serious adverse events received by us to the FDA.

 

The FDA has also announced its intention to promulgate new GMPs specific to dietary supplements, to fully enforce DSHEA and monitor compliance with the Bioterrorism Act of 2002.

 

Our failure to comply with applicable FDA regulatory requirements could result in, among other things, injunctions, product withdrawals, recalls, product seizures, fines and criminal prosecutions.  We intend to comply with the new GMPs once they are adopted. The new GMPs, predicted to be finalized shortly, would be more detailed and stringent than the GMPs that currently apply to dietary supplements and may, among other things, require dietary supplements to be prepared, packaged, produced and held in compliance with regulations similar to the GMP regulations for drugs. There can be no assurance that, if the FDA adopts GMP regulations for dietary supplements, we will be able to comply with the new regulations without incurring a substantial expense.

 

8
 

 

As a result of our efforts to comply with applicable statutes and regulations in the United States and elsewhere, we have from time to time reformulated, eliminated or relabeled certain of our products and revised certain advertising claims. We cannot predict the nature of any future laws, regulations, interpretations or applications, nor can we determine what effect additional governmental regulations or administrative orders, when and if promulgated, would have on our business in the future. They could, however, require the reformulation of certain products to meet new standards, the recall or discontinuance of certain products not capable of reformulation, additional record keeping, expanded documentation of the properties of certain products, expanded or different labeling, and/or scientific substantiation. Any or all of such requirements could have a material adverse effect on our business, financial condition and results of operations.

 

Our advertising of dietary supplement products is subject to regulation by the FTC under the FTCA. Section 5 of the FTCA prohibits unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce. Section 12 of the FTCA provides that the dissemination or the causing to be disseminated of any false advertisement pertaining to drugs or foods, which would include dietary supplements, is an unfair or deceptive act or practice. Under the FTC’s Substantiation Doctrine, an advertiser is required to have a “reasonable basis” for all objective product claims before the claims are made. Failure to adequately substantiate claims may be considered either deceptive or unfair practices. Pursuant to this FTC requirement, we are required to have adequate substantiation for all material advertising claims made for our products.

 

On November 18, 1998, the FTC issued “Dietary Supplements: An Advertising Guide for Industry.” This guide provides marketers of dietary supplements with guidelines on applying FTC law to dietary supplement advertising.  It includes examples of the principles that should be used when interpreting and substantiating dietary supplement advertising. Although the guide provides additional explanation, it does not substantively change the FTC’s existing policy that all supplement marketers have an obligation to ensure that claims are presented truthfully and to verify the adequacy of the support behind such claims.  Our outside counsel reviews our advertising claims for compliance with FTC requirements.

 

The FTC has a variety of processes and remedies available to it for enforcement, both administratively and judicially, including compulsory process, cease and desist orders and injunctions. FTC enforcement can result in orders requiring, among other things, limits on advertising, corrective advertising, consumer redress, divestiture of assets, rescission of contracts and such other relief as may be deemed necessary. A violation of such orders could have a material adverse effect on our business, financial condition and results of operations.

 

Advertising and labeling for dietary supplements and conventional foods are also regulated by state, county and other local governmental authorities. Some states also permit these laws to be enforced by private attorney generals. These private attorney generals may seek relief for consumers, seek class action certifications, seek class-wide damages, seek class-wide refunds and product recalls of products sold by us. There can be no assurance that state and local authorities will not commence regulatory action, which could restrict the permissible scope of our product advertising claims, or products that can be sold in the future.

 

Governmental regulations in foreign countries where we plan to or expand sales may prevent or delay entry into the market or prevent or delay the introduction, or require the reformulation, of certain of our products.  Compliance with such foreign governmental regulations is generally the responsibility of our distributors for those countries.  These distributors are independent contractors over whom we have limited control.

 

Number of Total Employees and Number of Full Time Employees

 

We believe that our success will depend greatly on our ability to identify, attract, and retain capable employees. As of April 13, 2012, we had 24 full time employees. Our employees are not represented by any collective bargaining unit, and we believe our relations with our employees are good. We have recently completed staffing for the in-house medical and physiology center on-site in our work-out, fight training and training facilities.

 

9
 

 

Item 1A. Risk Factors.

 

Risks Related to Our Business and Industry

 

OUR INDEPENDENT AUDITORS HAVE EXPRESSED SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO CONTINUE AS A GOING CONCERN, WHICH MAY HINDER OUR ABILITY TO CONTINUE AS A GOING CONCERN AND OUR ABILITY TO OBTAIN FUTURE FINANCING.

 

As reflected in the accompanying financial statements, the Company had a net loss of $23,280,950 and net cash used in operations of $5,801,761 for the year ended December 31, 2011, and a working capital deficit and stockholders’ deficit of $13,693,267 and $12,971,212, respectively, at December 31, 2011. These factors raise substantial doubt about the Company's ability to continue as a going concern.

 

The ability of the Company to continue its operations is dependent on management’s plans, which include the raising of capital through debt and/or equity markets with some additional funding from other traditional financing sources, including term notes, until such time that funds provided by operations are sufficient to fund working capital requirements. The Company may need to incur liabilities with certain related parties to sustain the Company’s existence.

 

The Company will require additional funding to finance the growth of its current and expected future operations as well as to achieve its strategic objectives. The Company believes its current available cash along with anticipated revenues may be insufficient to meet its cash needs for the near future.  There can be no assurance that financing will be available in amounts or terms acceptable to the Company, if at all.

 

In response to these problems, management has taken the following actions:

 

·seeking additional third party debt and/or equity financing;

 

·execute a plan to recapitalize the company;

 

·continue with the implementation of the business plan;

 

·generate new sales from international customers; and

 

·allocate sufficient resources to continue with advertising and marketing efforts.

 

In their report dated April 13, 2012, our independent auditors stated that our financial statements for the period ended December 31, 2011, were prepared assuming that we would continue as a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. These financial statements do not include any adjustments relating to the recovery of the recorded assets or the classification of the liabilities that might be necessary should the Company be unable to continue as a going concern.

 

WE WILL NEED TO RAISE ADDITIONAL CAPITAL TO CARRY OUT OUR BUSINESS PLAN.

 

We will need to raise additional capital to fund the growth of our business.  There is no guarantee that we will be able to access additional capital at rates and on terms which are attractive to us, if at all.  Without the additional funding needed to fund our growth we may not be able to grow as planned.

 

OUR FAILURE TO APPROPRIATELY RESPOND TO COMPETITIVE CHALLENGES, CHANGING CONSUMER PREFERENCES AND DEMAND FOR NEW PRODUCTS COULD SIGNIFICANTLY HARM OUR CUSTOMER RELATIONSHIPS AND PRODUCT SALES.

 

The nutritional sports supplement industry is characterized by intense competition for product offerings and rapid and frequent changes in consumer demand. Our failure to accurately predict product trends could negatively impact our products and inventory levels and cause our revenues to decline.

 

Our success with any particular product offering (whether new or existing) depends upon a number of factors, including our ability to:

 

10
 

 

·deliver products in a timely manner in sufficient volumes;

 

·accurately anticipate customer needs and forecast accurately to the manufacturer in a rapidly expanding business;

 

·differentiate our product offerings from those of our competitors;

 

·competitively price our products; and

 

·develop and/or acquire new products.

 

Products often have to be promoted heavily in stores or in the media to obtain visibility and consumer acceptance.  Acquiring distribution for products is difficult and often expensive due to slotting and other promotional charges mandated by retailers. Products can take substantial periods of time to develop consumer awareness, consumer acceptance and sales volume. Accordingly, some products fail to gain or maintain sufficient sales volume and as a result have to be discontinued. In a highly completive marketplace it may be difficult to have retailers open stock-keeping units (sku’s) for new products.

 

OUR INDUSTRY IS HIGHLY COMPETITIVE, AND OUR FAILURE TO COMPETE EFFECTIVELY COULD ADVERSELY AFFECT OUR MARKET SHARE, FINANCIAL CONDITION AND FUTURE GROWTH.

 

The sports supplement industry is highly competitive with respect to:

 

·price;

 

·shelf space and store placement;

 

·brand and product recognition;

 

·new product introductions; and

 

·raw materials.

 

Several of our competitors are larger, more established and possess greater financial, personnel, distribution and other resources. We face competition in the health food channel from a limited number of large nationally known manufacturers, private label brands and many smaller manufacturers of dietary supplements.

 

WE RELY ON A LIMITED NUMBER OF CUSTOMERS FOR A SUBSTANTIAL PORTION OF OUR SALES, AND THE LOSS OF OR MATERIAL REDUCTION IN PURCHASE VOLUME BY ANY OF THESE CUSTOMERS WOULD ADVERSELY AFFECT OUR SALES AND OPERATING RESULTS.

 

In 2011, two customers accounted for approximately 55% of net sales. Our largest customer in 2011 represented 40% of our sales. In 2010, three customers accounted for approximately 63% of our sales. The largest customer in 2010 accounted for 42% of our sales. The loss of any of our major customers, a significant reduction in purchases by any major customer, or, any serious financial difficulty of a major customer, could have a material adverse effect on our sales and results of operations.

 

Customer   2011   2010 
A    40%   42%
B    15%   9%
C    -%   12%
D    -%   -%
E    -%   -%
             

11
 

 

ADVERSE PUBLICITY OR CONSUMER PERCEPTION OF OUR PRODUCTS AND ANY SIMILAR PRODUCTS DISTRIBUTED BY OTHERS COULD HARM OUR REPUTATION AND ADVERSELY AFFECT OUR SALES AND REVENUES.

 

We are highly dependent upon positive consumer perceptions of the safety and quality of our products as well as similar products distributed by other sports nutrition supplement companies. Consumer perception of sports nutrition supplements and our products in particular can be substantially influenced by scientific research or findings, national media attention and other publicity about product use. Adverse publicity from such sources regarding the safety, quality or efficacy of dietary supplements and our products could harm our reputation and results of operations. The mere publication of reports asserting that such products may be harmful or questioning their efficacy could have a material adverse effect on our business, financial condition and results of operations, regardless of whether such reports are scientifically supported or whether the claimed harmful effects would be present at the dosages recommended for such products.

 

IF WE ARE UNABLE TO RETAIN KEY PERSONNEL, OUR ABILITY TO MANAGE OUR BUSINESS EFFECTIVELY AND CONTINUE OUR GROWTH COULD BE NEGATIVELY IMPACTED.

 

Key management employees include Brad J. Pyatt, Cory Gregory, Jeremy DeLuca, Larry Meer, John H. Bluher, and certain other individuals. These key management employees are primarily responsible for our day-to-day operations, and we believe our success depends in large part on our ability to retain them and to continue to attract additional qualified individuals to our management team. Currently, we have executed employment agreements with our key management employees. We anticipate having all key executives under new performance based contracts by the end of the second quarter of 2012. The loss or limitation of the services of any of our key management employees or the inability to attract additional qualified personnel could have a material adverse effect on our business and results of operations. We may obtain key man insurance on one or more key executives.

 

OUR OPERATING RESULTS MAY FLUCTUATE, WHICH MAKES OUR RESULTS DIFFICULT TO PREDICT AND COULD CAUSE OUR RESULTS TO FALL SHORT OF EXPECTATIONS.

 

Our operating results may fluctuate as a result of a number of factors, many outside of our control. As a result, comparing our operating results on a period-to-period basis may not be meaningful, and you should not rely on our past results as an indication of our future performance. Our quarterly, year-to-date, and annual expenses as a percentage of our revenues may differ significantly from our historical or projected rates. Our operating results in future quarters may fall below expectations. Each of the following factors may affect our operating results:

 

·our ability to deliver products in a timely manner in sufficient volumes;

 

·our ability to recognize product trends;

 

·our loss of one or more significant customers;

 

·the introduction of successful new products by our competitors; and

 

·adverse media reports on the use or efficacy of sports nutrition supplements.

 

Because our business is changing and evolving, our historical operating results may not be useful to you in predicting our future operating results.

 

THE EFFECTS OF THE RECENT GLOBAL ECONOMIC CRISIS MAY IMPACT OUR BUSINESS, OPERATING RESULTS, OR FINANCIAL CONDITION.

 

The recent global economic crisis has caused disruptions and extreme volatility in global financial markets and increased rates of default and bankruptcy, and has impacted levels of consumer spending. These macroeconomic developments could negatively affect our business, operating results, or financial condition. For example, if consumer spending continues to decrease, this may result in lower sales.

 

12
 

 

 

 

OUR BUSINESS AND OPERATIONS ARE EXPERIENCING RAPID GROWTH.  IF WE FAIL TO EFFECTIVELY MANAGE OUR GROWTH, OUR BUSINESS AND OPERATING RESULTS COULD BE HARMED.

 

We have experienced and expect to continue to experience rapid growth in our operations, which has placed, and will continue to place, significant demands on our management, operational and financial infrastructure. If we do not effectively manage our growth, we may fail to timely deliver products to our customers in sufficient volume or the quality of our products could suffer, which could negatively affect our operating results. To effectively manage this growth, we will need to hire additional persons, particularly in sales and marketing, and we will need to continue to improve our operational, financial and management controls and our reporting systems and procedures. These additional employees, systems enhancements and improvements will require significant capital expenditures and management resources. Failure to implement these improvements could hurt our ability to manage our growth and our financial position.

 

WE MAY BE EXPOSED TO MATERIAL PRODUCT LIABILITY CLAIMS, WHICH COULD INCREASE OUR COSTS AND ADVERSELY AFFECT OUR REPUTATION AND BUSINESS.

 

As a marketer and distributor of products designed for human consumption, we are subject to product liability claims if the use of our products is alleged to have resulted in injury. Our products consist of vitamins, minerals, herbs and other ingredients that are classified as dietary supplements and in most cases are not subject to pre-market regulatory approval in the United States or internationally.  Previously unknown adverse reactions resulting from human consumption of these ingredients could occur.

 

We have not had any product liability claims filed against us, but in the future we may be, subject to various product liability claims, including among others that our products had inadequate instructions for use, or inadequate warnings concerning possible side effects and interactions with other substances. The cost of defense can be substantially higher than the cost of settlement even when claims are without merit. The high cost to defend or settle product liability claims could have a material adverse effect on our business and operating results. 

 

OUR INSURANCE COVERAGE OR THIRD PARTY INDEMNIFICATION RIGHTS MAY NOT BE SUFFICIENT TO COVER OUR LEGAL CLAIMS OR OTHER LOSSES THAT WE MAY INCUR IN THE FUTURE.

 

We maintain insurance, including property, general and product liability, and workers’ compensation to protect ourselves against potential loss exposures. In the future, insurance coverage may not be available at adequate levels or on adequate terms to cover potential losses, including on terms that meet our customer’s requirements. If insurance coverage is inadequate or unavailable, we may face claims that exceed coverage limits or that are not covered, which could increase our costs and adversely affect our operating results.

 

OUR INTELLECTUAL PROPERTY RIGHTS ARE VALUABLE, AND ANY INABILITY TO PROTECT THEM COULD REDUCE THE VALUE OF OUR PRODUCTS AND BRAND.

 

We have invested significant resources to protect our brands and intellectual property rights. However, we may be unable or unwilling to strictly enforce our intellectual property rights, including our trademarks, from infringement.  Our failure to enforce our intellectual property rights could diminish the value of our brands and product offerings and harm our business and future growth prospects.

 

WE MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS CLAIMS, WHICH ARE COSTLY TO DEFEND, COULD REQUIRE US TO PAY DAMAGES AND COULD LIMIT OUR ABILITY TO SELL SOME OF OUR PRODUCTS.

 

As a marketer and distributor of products designed for human consumption, we are subject to product liability claims if the use of our products is alleged to have resulted in injury. Our products consist of vitamins, minerals, herbs and other ingredients that are classified as dietary supplements and in most cases are not subject to pre-market regulatory approval in the United States or internationally. Previously unknown adverse reactions resulting from human consumption of these ingredients could occur (See Item 3. Legal Proceedings).

 

13
 

 

WE RELY ON HIGHLY SKILLED PERSONNEL AND, IF WE ARE UNABLE TO RETAIN OR MOTIVATE KEY PERSONNEL, HIRE QUALIFIED PERSONNEL, WE MAY NOT BE ABLE TO GROW EFFECTIVELY.

 

Our performance largely depends on the talents and efforts of highly skilled individuals. Our future success depends on our continuing ability to identify, hire, develop, motivate and retain highly skilled personnel for all areas of our organization, particularly sales and marketing. Competition in our industry for qualified employees is intense. In addition, our compensation arrangements, such as our equity award programs, may not always be successful in attracting new employees and retaining and motivating our existing employees. Our continued ability to compete effectively depends on our ability to attract new employees and to retain and motivate our existing employees.

 

An increase in product returns could negatively impact the Company's operating results and profitability.

 

The Company permits the return of damaged or defective products and accepts limited amounts of product returns in certain instances. Accordingly, the Company provides allowances for the estimated amounts of these returns at the time of revenue recognition based on historical experience. While such returns have historically been nominal and within management’s expectations and the provisions established, future return rates may differ from those experienced in the past. Any significant increase in damaged or defective products or expected returns could have a material adverse effect on the Company’s operating results for the period or periods in which such returns materialize.

 

A SHORTAGE IN THE SUPPLY OF KEY RAW MATERIALS COULD INCREASE OUR COSTS OR ADVERSELY AFFECT OUR SALES AND REVENUES.

 

We obtain all of our raw materials from third-party suppliers with whom we do not have significant long-term supply contracts. Since all of the ingredients in our products are commonly used, we have not experienced any shortages or delays in obtaining raw materials. If things changed, shortages could result in materially higher raw material prices or adversely affect our ability to manufacture a product. Price increases from a supplier would directly affect our profitability if we are not able to pass price increases on to customers. Our inability to obtain adequate supplies of raw materials in a timely manner or a material increase in the price of our raw materials could have a material adverse effect on our business, financial condition and results of operations.

 

BECAUSE WE ARE SUBJECT TO NUMEROUS LAWS AND REGULATIONS, AND WE MAY BECOME INVOLVED IN LITIGATION FROM TIME TO TIME, WE COULD INCUR SUBSTANTIAL JUDGMENTS, FINES, LEGAL FEES AND OTHER COSTS.

 

Our industry is highly regulated. The manufacture, labeling and advertising for our products are regulated by various federal, state and local agencies as well as those of each foreign country to which we distribute. These governmental authorities may commence regulatory or legal proceedings, which could restrict the permissible scope of our product claims or the ability to manufacture and sell our products in the future. The FDA regulates our products to ensure that the products are not adulterated or misbranded. Failure to comply with FDA requirements may result in, among other things, injunctions, product withdrawals, recalls, product seizures, fines and criminal prosecutions. Our advertising is subject to regulation by the FTC under the FTCA. In recent years the FTC has initiated numerous investigations of dietary supplement and weight loss products and companies. Additionally, some states also permit advertising and labeling laws to be enforced by private attorney generals, who may seek relief for consumers, seek class action certifications, seek class wide damages and product recalls of products sold by us. Any of these types of adverse actions against us by governmental authorities or private litigants could have a material adverse effect on our business, financial condition and results of operations.

 

Other Risks Factors

 

WE MAY, IN THE FUTURE, ISSUE ADDITIONAL COMMON SHARES, WHICH WOULD REDUCE INVESTORS’ PERCENT OF OWNERSHIP AND MAY DILUTE OUR SHARE VALUE.

 

Our Articles of Incorporation authorize the issuance of 2,500,000,000 shares of common stock, 5,000,000 shares of Series A Convertible Preferred Stock, 51 shares of Series B Preferred Stock, 500 shares of Series C Convertible Preferred Stock. The Company currently has 9,999,449 shares of blank-check preferred stock authorized but undesignated. The future issuance of common stock may result in substantial dilution in the percentage of our common stock held by our then existing shareholders. We may value any common stock issued in the future on an arbitrary basis. The issuance of common stock for future services or acquisitions or other corporate actions may have the effect of diluting the value of the shares held by our investors, and might have an adverse effect on any trading market for our common stock.

 

14
 

 

OUR COMMON STOCK IS QUOTED ON THE OTCBB, WHICH MAY HAVE AN UNFAVORABLE IMPACT ON OUR STOCK PRICE AND LIQUIDITY.

 

Our common stock is quoted on the OTCBB. The OTCBB is a significantly more limited market than the New York Stock Exchange or NASDAQ system. The quotation of our shares on the OTCBB may result in a less liquid market available for existing and potential stockholders to trade shares of our common stock, could depress the trading price of our common stock and could have a long-term adverse impact on our ability to raise capital in the future.

 

OUR COMMON SHARES ARE SUBJECT TO THE “PENNY STOCK” RULES OF THE SEC AND THE TRADING MARKET IN OUR SECURITIES IS LIMITED, WHICH MAKES TRANSACTIONS IN OUR STOCK CUMBERSOME AND MAY REDUCE THE VALUE OF AN INVESTMENT IN OUR STOCK.

 

The Securities and Exchange Commission has adopted Rule 15g-9 which establishes the definition of a “penny stock,” for the purposes relevant to us, as any equity security that has a market price of less than $5.00 per share or with an exercise price of less than $5.00 per share, subject to certain exceptions.

 

For any transaction involving a penny stock, unless exempt, the rules require:

 

(a)that a broker or dealer approve a person’s account for transactions in penny stocks; and

 

(b)the broker or dealer receive from the investor a written agreement to the transaction, setting forth the identity and quantity of the penny stock to be purchased.

 

In order to approve a person’s account for transactions in penny stocks, the broker or dealer must: (a) obtain financial information and investment experience objectives of the person; and (b) make a reasonable determination that the transactions in penny stocks are suitable for that person and the person has sufficient knowledge and experience in financial matters to be capable of evaluating the risks of transactions in penny stocks.

 

The broker or dealer must also deliver, prior to any transaction in a penny stock, a disclosure schedule prescribed by the Commission relating to the penny stock market, which, in highlight form: (a) sets forth the basis on which the broker or dealer made the suitability determination, and (b) that the broker or dealer received a signed, written agreement from the investor prior to the transaction. Generally, brokers may be less willing to execute transactions in securities subject to the “penny stock” rules. This may make it more difficult for investors to dispose of our Common shares and cause a decline in the market value of our stock.

 

Disclosure also has to be made about the risks of investing in penny stocks in both public offerings and in secondary trading and about the commissions payable to both the broker-dealer and the registered representative, current quotations for the securities and the rights and remedies available to an investor in cases of fraud in penny stock transactions. Finally, monthly statements have to be sent disclosing recent price information for the penny stock held in the account and information on the limited market in penny stocks.

 

LIABILITY OF DIRECTORS FOR BREACH OF DUTY OF CARE IS LIMITED.

 

According to Nevada law (NRS 78.138(7)), all Nevada corporations limit the liability of directors and officers, including acts not in good faith. Our stockholders’ ability to recover damages for fiduciary breaches may be reduced by this statute. In addition, we are obligated to indemnify our directors and officers regarding stockholder suits which they successfully defend (NRS 78.7502).

 

15
 

 

BECAUSE WE DO NOT INTEND TO PAY ANY CASH DIVIDENDS ON OUR COMMON STOCK, OUR STOCKHOLDERS WILL NOT BE ABLE TO RECEIVE A RETURN ON THEIR SHARES UNLESS THEY SELL THEM.

 

We intend to retain any future earnings to finance the development and expansion of our business. We do not anticipate paying any cash dividends on our common stock in the foreseeable future. Unless we pay dividends, our stockholders will not be able to receive a return on their shares unless they sell them. There is no assurance that stockholders will be able to sell shares when desired.

 

WE WILL INCUR ONGOING COSTS AND EXPENSES FOR SEC REPORTING AND COMPLIANCE, AND WITHOUT REVENUE WE MAY NOT BE ABLE TO REMAIN IN COMPLIANCE WITH THE SEC, MAKING IT DIFFICULT FOR INVESTORS TO SELL THEIR SHARES, IF AT ALL.

 

To remain eligible for quotation on the OTCBB, issuers must remain current in their filings with the SEC. Market Makers are not permitted to begin quotation of a security whose issuer does not meet this filing requirement. Securities already quoted on the OTCBB that become delinquent in their required filings will be removed following a 30 or 60 day grace period if they do not make their required filing during that time. In order for us to remain in compliance we will require future revenues to cover the cost of these filings, which could comprise a substantial portion of our available cash resources. If we are unable to generate sufficient revenues to remain in compliance it may be difficult for you to resell any shares you may purchase, if at all.

 

WE MAY ISSUE ADDITIONAL SHARES OF PREFERRED STOCK IN THE FUTURE THAT MAY ADVERSELY IMPACT YOUR RIGHTS AS HOLDERS OF OUR COMMON STOCK.

 

Our articles of incorporation authorize us to issue up to issue up to 15,000,000 shares of preferred stock in various classes. To date, the Company has issued 51 shares of Series B preferred stock and 190 shares of Series C preferred stock. The Series C preferred stock is convertible into shares of the Company’s common stock. Our board of directors will have the authority to fix and determine the relative rights and preferences of preferred shares, as well as the authority to issue additional shares, without further stockholder approval. As a result, our board of directors could authorize the issuance of a series of preferred stock that would grant to holders preferred rights to our assets upon liquidation, the right to receive dividends before dividends are declared to holders of our common stock, and the right to the redemption of such preferred shares, together with a premium, prior to the redemption of the common stock. To the extent that we do issue such additional shares of preferred stock, your rights as holders of common stock could be impaired thereby, including, without limitation, dilution of your ownership interests in us. In addition, shares of preferred stock could be issued with terms calculated to delay or prevent a change in control or make removal of management more difficult, which may not be in your interest as a holder of common stock.

 

Item 1B. Unresolved Staff Comments.

 

Not applicable.

 

Item 2. Properties.

 

MusclePharm’s corporate headquarters is located in Denver, Colorado. This commercial office building is 30,320 sq. ft. with 5,000 sq. ft. being used for offices and the other 25,000 sq. ft. utilized for research and development. The space includes a full performance training center, medical laboratory, and a 96 seat theatre room. The term of the lease is 65 months, expiring on December 31, 2015. We currently pay approximately $13,500 in lease payments per month.

 

MusclePharm is leasing a small office and distribution warehouse in Boise, Id. The lease expires in February 2013 and the Company pays approximately $3,500 per month in rent fees.

 

Item 3. Legal Proceedings.

 

From time to time we may become involved in legal proceedings which could adversely affect us.  We are currently not involved in any litigation, other than litigation in the ordinary course of business, that we believe could have a materially adverse effect on our financial condition or results of operations. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the executive officers of our company or any of our subsidiaries, threatened against or affecting our company, our common stock, any of our subsidiaries or of our company’s or our company’s subsidiaries’ officers or directors in their capacities as such, in which an adverse decision could have a material adverse effect.

 

16
 

 

Item 4. Mine Safety Disclosures.

 

Not applicable.

 

17
 

 

PART II

 

Item 5. Market for Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

 

(a) Market Information

 

Our shares of common stock were cleared for trading under the symbol “TTWZ:OB” on the OTCBB on November 24, 2008, and later began trading on the OTCBB under the symbol “MSLP:OB” on April 27, 2010. Prior to this period, there was minimal trading in our common stock. The high and low prices for our common stock during the calendar quarters ended were:

 

Quarter ended  High   Low 
December 31, 2011  $0.026   $0.007 
September 30, 2011  $0.039   $0.014 
June 30, 2011  $0.081   $0.025 
March 31, 2011  $0.130   $0.036 
December 31, 2010  $0.900   $0.050 
September 30, 2010  $1.030   $0.410 
June 30, 2010  $1.180   $0.950 
March 31, 2010  $-   $- 
December 31, 2009  $-   $- 
September 30, 2009  $-   $- 
June 30, 2009  $-   $- 
March 31, 2009  $-   $- 

 

Quotations on the OTCBB reflect bid and ask quotations, may reflect inter-dealer prices, without retail markup, markdown or commission, and may not represent actual transactions. In periods prior to June 30, 2010, there was no volume in the Company’s common stock.

 

(b) Holders

 

As of April 13, 2012, we estimate that there were approximately 3,750 holders of record of our common stock. This figure does not take into account those shareholders whose certificates are held in the name of broker-dealers, “street name,” or other nominees.

 

(c) Dividends

 

We have not paid any dividends to the holders of our common stock and we do not expect to pay any such dividends in the foreseeable future as we expect to retain our future earnings for use in the operation and expansion of our business.

 

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(d) Securities Authorized for Issuance under Equity Compensation Plan

 

As of December 31, 2011, we had an employee stock option plan under which 5,000,000 shares had been reserved for issuance. The following table shows information with respect to this plan as of the fiscal year ended December 31, 2011.

 

Equity Compensation Plan Information

 

Plan category  Number of securities to be
issued upon exercise of
outstanding options,
warrants and rights
(a)
   Weighted-average
exercise price of
outstanding options,
warrants and rights(b)
   Number of securities
remaining available for
future issuance under
equity compensation plans
(excluding securities
reflected in column (a))
(c)
 
Equity compensation plans approved by security holders   1,617,500   $0.50    3,382,500 
Equity compensation plans not approved by security holders   -    -    - 
Total   1,617,500   $0.50    3,382,500 

 

Unregistered Sales of Equity Securities

 

During the year ended December 31, 2011, the Company issued 487,281,174 shares of its common stock

 

Item 6. Selected Financial Data.

 

Not applicable.

 

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

This report and other reports filed by our Company from time to time with the United States Securities and Exchange Commission (collectively the “Filings”) contain or may contain forward-looking statements and information that are based upon beliefs of, and information currently available to, our management as well as estimates and assumptions made by our management. Readers are cautioned not to place undue reliance on these forward-looking statements, which are only predictions and speak only as of the date hereof. When used in the filings, the words “anticipate,” “believe,” “estimate,” “expect,” “future,” “intend,” “plan,” or the negative of these terms and similar expressions as they relate to us or our management identify forward-looking statements. Such statements reflect our current view with respect to future events and are subject to risks, uncertainties, assumptions, and other factors, including those set forth in the Risk Factors on page 10. Should one or more of these risks or uncertainties materialize, or should the underlying assumptions prove incorrect, actual results may differ significantly from those anticipated, believed, estimated, expected, intended, or planned.

 

Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance, or achievements. Except as required by applicable law, including the securities laws of the United States, we do not intend to update any of the forward-looking statements to conform these statements to actual results.

 

Our financial statements are prepared in accordance with accounting principles generally accepted in the United States (“GAAP”). These accounting principles require us to make certain estimates, judgments and assumptions. We believe that the estimates, judgments and assumptions upon which we rely are reasonable based upon information available to us at the time that these estimates, judgments and assumptions are made. These estimates, judgments and assumptions can affect the reported amounts of assets and liabilities as of the date of the financial statements as well as the reported amounts of revenues and expenses during the periods presented. Our financial statements would be affected to the extent there are material differences between these estimates and actual results. In many cases, the accounting treatment of a particular transaction is specifically dictated by GAAP and does not require management’s judgment in its application. There are also areas in which management’s judgment in selecting any available alternative would not produce a materially different result. The following discussion should be read in conjunction with our consolidated financial statements and notes thereto appearing elsewhere in this report.

 

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Plan of Operation

 

Headquartered in Denver, Colorado, MusclePharm is a rapidly expanding healthy life-style company that develops and distributes a full line of National Sanitation Foundation International and scientifically approved, nutritional supplements that are 100% free of any banned substances. Based on years of research, MusclePharm products are created through an advanced six-stage research protocol involving the expertise of top nutritional scientists and field tested by more than 100 elite professional athletes from various sports including the National Football League, mixed martial arts, and Major League Baseball. The Company’s propriety and award winning products address all categories of an active lifestyle including muscle building, weight loss, and maintaining general fitness through a daily nutritional supplement regimen. MusclePharm is sold in over 120 countries and available in over 5,000 U.S. retail outlets, including GNC, Vitamin Shoppe, and Vitamin World. The Company also sells its products in over 100 online stores, including bodybuilding.com, amazon.com and vitacost.com.

 

Our primary focus at the current time is on the following:

 

(1)Increase our distribution and sales;

 

(2)Continue aggressive marketing campaign to further build upon our brand and market awareness;

 

(3)Conduct additional testing of the safety and efficacy of our products; and

 

(4)Hire additional key employees to continue to strengthen the Company.

 

Results of Operations

 

For the Year Ended December 31, 2011 Compared to the Year Ended December 31, 2010

 

Revenues

 

Net revenues from the sale of products were approximately $21 million for the year ended December 31, 2011, as compared to revenue from the sale of products of approximately $4.0 million for the year ended December 31, 2010. Sales activities during the year ended December 31, 2011, increased due to the increase in advertising and promotion efforts, as well as the change in the Company’s manufacturers, which provided more consistent shipments to customers. The increase is also related to the significant capital spent on marketing with distributors and marketing and brand recognition with endorsements and sponsorships.

 

Cost of Sales

 

Cost of sales for the year ended December 31, 2011, were approximately $14.5 million or 69% of revenue, as compared to approximately $2.8 million or 69% of revenue for the year ended December 31, 2010. The cost of sales as a percentage of revenues decreased due to the change in manufacturers as we realized savings offered by quantity discounts.

 

Operating Expenses

 

Operating expenses for the year ended December 31, 2011, were approximately $22.6 million, as compared to approximately $19.5 million for the year ended December 31, 2010. The approximate $3.1 million increase is primarily due to an increase in adverting and promotion of approximately $2.2 million, an increase in stock based compensation – of approximately $3.7 million, an increase in depreciation expense of approximately $0.2 million and an increase in travel, meetings and entertainment of approximately $0.3 million, offset by a decrease in investment advisory services of approximately $2.4 million and a decrease in research and development costs of approximately $1.2 million.

 

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Operating Loss

 

Operating loss for the year ended December 31, 2011 was approximately $16.2 million, as compared to approximately $18.3 million for the year ended December 31, 2010.

 

Interest Expense

 

Interest expense for the year ended December 31, 2011, was approximately $3.7 million, as compared to approximately $0.5 million for the year ended December 31, 2010. The increase in interest expense primarily relates to amortization of the debt discounts and debit issue costs of $3.5 million and interest charges incurred on our portfolio of debt instruments of approximately $0.2 million.

 

Other Expenses

 

Other expenses for the year ended December 31, 2011, were approximately $7 million, as compared to approximately $1.3 million for the year ended December 31, 2010. The $5.7 million increase in other expenses is primarily due to an increase in derivative expense of approximately $4.7 million, an increase in interest expense of approximately $3.2 million and increases in the losses on settlement of accounts payable of approximately $3.4 million, offset by changes in the fair value of derivative liabilities of approximately $5.3 million and licensing income of approximately $0.2 million.

 

Net Loss

 

Net loss for the year ended December 31, 2011, was approximately $23.3 million, or loss per share of $0.08, as compared to the net loss of approximately $19.6 million or loss per share of $0.48 for the year ended December 31, 2010.

 

Inflation did not have a material impact on the Company’s operations for the period. Other than the foregoing, management knows of no trends, demands, or uncertainties that are reasonably likely to have a material impact on the Company’s results of operations.

 

Liquidity and Capital Resources

 

The following table summarizes total current assets, liabilities and working capital at December 31, 2011, compared to December 31, 2010.

 

   December 31, 2011   December 31, 2010   Increase/Decrease 
Current Assets  $4,016,833   $2,494,441   $1,522,392 
Current Liabilities  $17,710,100   $4,215,648   $13,494,452 
Working Capital (Deficit)  $(13,693,267)  $(1,721,207)  $(11,972,060)

 

Our primary source of operating cash has been through the sale of equity and through the issuance of convertible secured promissory notes and other short term debt as discussed below.

 

At December 31, 2011, the Company had cash of $659,764 and working capital deficit of approximately $13.7 million, compared to cash of $43,700 and a working capital deficit of approximately $1.7 million at December 31, 2010. The working capital deficit increase of approximately $12.0 million is primarily due to an increase in accounts payable and accrued liabilities of approximately $6.1 million, an increase in derivative liabilities of approximately $6.4 million and an increase of debt, net of discounts of approximately $1 million, offset by an increase to prepaid sponsorships of approximately $0.2 million and an increase in accounts receivable of approximately $2.1 million.

 

Cash used in operating activities was approximately $5.8 million for the year ended December 31, 2011, as compared to cash used in operating activities of approximately $3.8 million for the year ended December 31, 2010. The increase in cash used in operating activities of approximately $2.0 million for the year ended December 31, 2011, compared to the year ended December 31, 2010, was primarily due to an increase of accounts receivable of approximately $2.1 million, an increase in the change in fair value of derivative liabilities of approximately $5.3 million, a decrease of stock issued for services of approximately $7.6 million, offset by an increase in warrants issued for services of approximately $2.0 million, an increase in the amortization of debt discount and debt issue costs of approximately $3.0 million, an increase in the loss on settlement of accounts payable of approximately $1.7 million, the increase on the loss on conversion of debt of approximately $1.7 million and the increase in derivative expense of approximately $4.7 million.

 

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Cash used in investing activities was $831,511 for the year ended December 31, 2011, as compared to cash used in investing activities of $117,303 for the year ended December 31, 2010. The increase in cash used in investing activities represents purchases of property and equipment, and the build out of our gym facility. We also maintain a website (www.musclepharm.com), designed for customers and investors. Future investments in property and equipment, as well as further development of our Internet presence will largely depend on available capital resources.

 

Cash flows provided by financing activities were approximately $7.2 million for the year ended December 31, 2011, as compared to cash flows provided by financing activities of approximately $4.0 million for the year ended December 31, 2010. The approximately $3.3 million increase is due to the $4.5 million increase in proceeds from issuance of debt, offset by decreases in the proceeds from issuance of debt – related party of approximately $0.4 million, the decrease in the proceeds from the issuance of common stock and warrants – net of recapitalization payment of $0.6 million and the increase in the cash paid for debt issue costs of approximately $0.3 million.

 

Cash Flows From Financing Activities: For the Years Ended  December 31
2011
   December 31
2010
 
         
Cash (cash overdraft)   -    (17,841)
           
Due to related party   -    (27,929)
           
Proceeds from issuance of debt   6,612,900    2,140,608 
           
Proceeds from issuance of debt - related party   -    358,077 
           
Repayment of debt   (75,285)   - 
           
Debt issuance costs   (263,283)   - 
           
Proceeds from issuance of preferred stock   100,000    - 
           
Losses incurred in connection with debt conversion prior to maturity   875,000    1,503,569 
           
Net Cash Provided By Financing Activities   7,249,332    3,956,484 

 

Off-Balance Sheet Arrangements

 

Other than the operating leases, as of December 31, 2011, MusclePharm did not have any off-balance sheet arrangements.

 

Critical Accounting Policies

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period.

 

Making estimates requires management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation or set of circumstances that existed at the date of the financial statements, which management considered in formulating its estimate could change in the near term due to one or more future non-conforming events. Accordingly, the actual results could differ significantly from estimates.

 

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Accounts Receivable

 

MusclePharm performs ongoing evaluations of its customer’s financial condition and generally does not require collateral. Management reviews accounts receivable periodically and reduces the carrying amount by a valuation allowance that reflects management’s best estimate of amounts that may not be collectible. Allowances, if any, for uncollectible accounts receivable are determined based upon information available and historical experience.

 

Property and Equipment

 

Property and equipment are stated at cost less accumulated depreciation. Included in property and equipment are website development costs which represent capitalized costs of design, configuration, coding, installation, and testing of the Company’s website. Depreciation is computed on the straight-line method over the asset’s useful lives which range from three to five years. Maintenance and repairs are charged to expense as incurred; improvements and betterments are capitalized.

 

Long-Lived Assets

 

MusclePharm’s primary long-lived assets are property and equipment. The Company assesses the recoverability of its long-lived assets whenever events and circumstances indicate the carrying value of an asset or asset group may not be recoverable from estimated future cash flows expected to result from its use and eventual disposition.

 

Fair Value Measurements

 

The Company follows guidance for fair value measurements which defines fair value, establishes a framework for using fair value to measure financial assets and liabilities on a recurring basis, and expands disclosures about fair value measurements. The Company also applies the guidance to non-financial assets and liabilities measured at fair value on a non-recurring basis, which includes goodwill and intangible assets. The guidance establishes a hierarchy for inputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable inputs be used when available. Observable inputs are inputs that market participants would use in pricing the asset or liability developed based on market data obtained from sources independent of the Company. Unobservable inputs are inputs that reflect the Company’s assumptions of what market participants would use in pricing the asset or liability developed based on the best information available in the circumstances. The hierarchy is broken down into three levels based on the reliability of the inputs as follows:

 

·Level 1 – Valuation is based upon unadjusted quoted market prices for identical assets or liabilities in active markets that the Company has the ability to access.

 

·Level 2 – Valuation is based upon quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in inactive markets; or valuations based on models where the significant inputs are observable in the market.

 

·Level 3 – Valuation is based on models where significant inputs are not observable. The unobservable inputs reflect the Company’s own assumptions about the inputs that market participants would use.

 

Financial instruments consist of cash, accounts receivable, prepaid expenses, accounts payable and accrued expenses. The carrying amount of these financial instruments approximates fair value due to their short-term nature or the current rates at which the Company could borrow funds with similar remaining maturities. Unless otherwise noted, it is management’s opinion that the Company is not exposed to significant interest, currency or credit risks arising from these financial statements.

 

Derivative Financial Instruments

 

Fair value accounting requires bifurcation of embedded derivative instruments such as conversion features in convertible debt or equity instruments, and measurement of their fair value for accounting purposes. In determining the appropriate fair value, the Company uses the Black-Scholes option-pricing model. In assessing the convertible debt instruments, management determines if the convertible debt host instrument is conventional convertible debt and further if there is a beneficial conversion feature requiring measurement. If the instrument is not considered conventional convertible debt, the Company will continue its evaluation process of these instruments as derivative financial instruments.

 

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Revenue Recognition

 

The Company records revenue when all of the following have occurred: (1) persuasive evidence of an arrangement exists, (2) product has been shipped or delivered by the third party manufacturer, (3) the sales price to the customer is fixed or determinable, and (4) collectability is reasonably assured. 

 

Depending on individual customer agreements, sales are recognized either upon shipment of products to customers or upon delivery. For one of our largest customers, which represent 15% of total revenue, revenue is recognized upon delivery. For all other customers, revenue is recognized upon shipment of the product. The Company records sales allowances and discounts as a direct reduction of sales. The Company recorded discounts of $359,182 and $152,664 for the years ended December 31, 2011 and 2010, respectively.

 

The Company grants volume incentive rebates to certain customers based on contractually agreed percentages ranging from 2.5% - 5.5% as a percentage of sales once a certain threshold has been met. The credits are recorded as a direct reduction to sales. Total volume incentive rebates granted for the years ended December 31, 2011 and 2010 were approximately $500,000 and $0, respectively.

 

The Company has an informal 7-day right of return for products. There were nominal returns in 2011 and 2010.

 

During the years ended December 31, 2011 and 2010, the Company had the following concentrations of revenues with customers:

 

Customer  2011   2010 
A   40%   42%
B   15%   9%
C   -%   12%

 

The Company does not manufacture or physically hold any inventory. Inventory is held and distributed by the Company’s third party manufacturer.

 

Sponsorship and Endorsement Agreements

 

As a component of its marketing strategy, the Company enters into sponsorship and endorsement agreements with prominent athletes, trainers, and other high profile individuals that provide the Company ongoing sources of exposure to its products. The agreements sometimes specify certain contingencies that must be met to receive payments; others may require regular or periodic payments with no specified service or events that trigger payments under an agreement, or a combination of both. Agreements that are contingent upon the successful completion of an event prior to payment are considered unearned until the completion of the triggering event, and as such, no expense or liability is recorded until the successful completion of the triggering event. Where agreements are based on time and not on specific triggering events, the services are considered to be earned ratably over the period of the agreement, and as such expenses and liabilities are recorded ratably over the term of the agreement.

 

On September 1, 2011, the Company signed a sponsorship agreement with Zuffa Marketing, LLC, the owner of Ultimate Fighting Championship™ (“UFC™”). The Company is one of five primary sponsors with Dodge Trucks, Harley-Davidson, Bud Light and Tapout. The Company is the “Official Supplement Company of the UFC.” The Company receives brand placement at UFC ™ events. Our agreement includes prominent logo placement on the mat, and our branding can be seen on Fox and pay-per-view worldwide.

 

Stock-Based Compensation

 

MusclePharm measures and recognizes compensation expense for all share-based awards made to employees and directors, including stock options and stock purchase warrants, based on estimated fair values. The Company must estimate the fair value of share-based awards on the grant date using an option pricing model. MusclePharm values share-based awards using the Black-Scholes option pricing model. The Black-Scholes model is highly complex and dependent on key estimates by management.

 

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Recent Accounting Pronouncements

 

In May 2011, the FASB issued ASU No. 2011-04, which amended ASC Topic 820 to achieve common fair value measurements and disclosure requirements in U.S. GAAP and International Financial Reporting Standards (“IFRS”). The amendments in ASU No. 2011-05 result in common fair value measurement and disclosure requirements in U.S. GAAP and IFRSs. Consequently, the amendments change the wording used to describe many of the requirements in U.S. GAAP for measuring fair value and for disclosing information about fair value measurements. This amendment is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011. The Company does not anticipate this amendment will have a material impact on its financial statements.

 

Item 7A. Quantitative and Qualitative Disclosures about Market Risk

 

Not applicable.

 

Item 8. Financial Statements and Supplementary Data.

 

Our financial statements are contained in pages F-1 through F-23, which appear at the end of this Annual Report.

 

Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

 

Not applicable.

 

Item 9A. Controls and Procedures.

 

(a) Evaluation of Disclosure Controls and Procedures

 

We maintain disclosure controls and procedures designed to ensure that information required to be disclosed in the reports we file pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that such information is accumulated and communicated to our Principal Executive Officer (“PEO”) and Principal Financial Officer (“PFO”), to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can only provide a reasonable assurance of achieving the desired control objectives, and in reaching a reasonable level of assurance, management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Management designed the disclosure controls and procedures to provide reasonable assurance of achieving the desired control objectives.

 

We carried out an evaluation, under the supervision and with the participation of our management, including our PEO and PFO, of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this Annual Report. Based upon that evaluation, the PEO and PFO concluded that the Company’s disclosure controls and procedures were ineffective.

 

(b) Management’s Assessment of Internal Control over Financial Reporting

 

Management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in the Exchange Act Rules 13a-15(f). A system of internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.

 

25
 

 

Under the supervision and with the participation of management, including the principal executive officer and the principal financial officer, the Company’s management has evaluated the effectiveness of its internal control over financial reporting as of December 31, 2010, based on the criteria established in a report entitled “Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission” and the interpretive guidance issued by the Commission in Release No. 34-55929. Based on this evaluation, the Company’s management has evaluated and concluded that the Company’s internal control over financial reporting was ineffective as of December 31, 2011, and identified the following material weaknesses:

 

·There is a lack of accounting personnel with the requisite knowledge of Generally Accepted Accounting Principles in the US (“GAAP”) and the financial reporting requirements of the U.S. Securities and Exchange Commission.

 

·There are insufficient written policies and procedures to insure the correct application of accounting and financial reporting with respect to the current requirements of GAAP and SEC disclosure requirements.

 

·There is a lack of segregation of duties, in that we only had one person performing all accounting-related duties.

 

Notwithstanding the existence of these material weaknesses in our internal control over financial reporting, our management believes that the consolidated financial statements included in its reports fairly present in all material respects the Company’s financial condition, results of operations and cash flows for the periods presented.

 

The Company will continue its assessment on a quarterly basis. We plan to hire personnel and resources to address these material weaknesses. We believe these issues can be solved with hiring in-house accounting support and plan to do so as soon as we have funds available for this.

 

This annual report does not include an attestation report of the Company’s independent registered public accounting firm regarding internal control over financial reporting. The Company’s registered public accounting firm was not required to issue an attestation on its internal controls over financial reporting pursuant to temporary rules of the Securities and Exchange Commission. The Company will continue to evaluate the effectiveness of internal controls and procedures on an on-going basis.

 

(c) Changes in Internal Control over Financial Reporting

 

There have been no changes in our internal controls over financial reporting (as such term is defined in Rule 13a-15(f) and 15d-15(f) under the Securities Exchange Act) during the year ended December 31, 2011, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Item 9B. Other Information.

 

Not applicable.

 

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PART III

 

Item 10. Directors, Executive Offices and Corporate Governance.

 

Directors and Executive Officers

 

The following table and text sets forth the names and ages of all our directors and executive officers and our key management personnel as of April 13, 2012. All of our directors serve until the next annual meeting of stockholders and until their successors are elected and qualified, or until their earlier death, retirement, resignation or removal. Executive officers serve at the discretion of the Board of Directors, and are elected or appointed to serve until the next Board of Directors meeting following the annual meeting of stockholders. Also provided is a brief description of the business experience of each director and executive officer and the key management personnel during the past five years and an indication of directorships held by each director in other companies subject to the reporting requirements under the Federal securities laws.

 

Name   Age   Position
         
Brad J. Pyatt   31   Chief Executive Officer and Director
         
Cory Gregory   33   Senior President and Director
         
Jeremy DeLuca   33   President and Chief Marketing Officer
         
Lawrence S. Meer   51   Chief Financial Officer
         
John H. Bluher   54   Chief Operating Officer

 

The biographies of each of our executive officers and directors are as follows:

 

Brad J. Pyatt, age 31, Chief Executive Officer, Director

 

Mr. Pyatt has served as the Chief Executive Officer and Director of the Company since February 18, 2010, and as President and Chief Executive Officer of Muscle Pharm, LLC, since its inception in April 2008. His background includes seven years of experience as a professional athlete, and more than five years of experience in the sports nutrition arena. Mr. Pyatt played in National Football League (NFL) for the Indianapolis Colts during the 2003, 2004, and 2005 NFL seasons as well for the Miami Dolphins during the 2006 NFL season. Mr Pyatt also played in the Arena Football League (AFL) for the Colorado Crush during the 2007 and 2008 AFL seasons. Mr. Pyatt attended the University of Kentucky from 1999 to 2002, where he studied kinesiology exercise science, as well the University of Northern Colorado, from 2002 to 2003.

 

The Company believes that Mr. Pyatt’s experience in the sports nutrition sector over the past five plus years, along with his background as a former professional athlete, give him an unique perspective on the nutrition industry as a whole and makes him a valuable member to the Company’s board of directors.

 

Cory Gregory, age 33, Senior President, Director

 

Mr. Gregory is currently the Senior President and member of the Company’s board of directors, roles he has served in since May 2010. Prior to joining the Company, Mr. Gregory served as the President, managing member, and owner of T3 Personal Training LLC (“T3”) from April 2009 until November 2000. T3 was a personal training service that managed and oversaw over 40 clients using 7 trainers over a ten year period. During the same period, Mr. Gregory served as President of the Ohio Natural Bodybuilding Federation, a federation founded by Mr. Gregory in 2004 which hosted 14 bodybuilding competitions over a six year period. In 2004, Mr. Gregory purchased the Old School Gym, located in Pataskala, OH, which he continues to own at present day.

 

The Company believes that Mr. Gregory’s extensive bodybuilding and personal training experience provide him with the insight necessary to understand the ongoing demands and changes to the nutrition industry and as such, makes him a valuable member to the Company’s board of directors.

 

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Jeremy DeLuca, age 33, President and Chief Marketing Officer

 

Mr. DeLuca is the Company’s President and Chief Marketing Officer. Prior to joining the Company, from April 1999 to November 2010, Mr. DeLuca served as the President of Bodybuilding.com, an online sports nutrition and supplements company which he co-founded in 1999 (“Bodybuilding.com”). As President, Mr. DeLuca was actively involved in all aspects of Bodybuilding.com’s business, with a focus on marketing, sales, and e-commerce. Mr. DeLuca’s responsibilities also included managing all vendor relations, marketing strategies, sales promotions, store content and store site development. During Mr. DeLuca’s tenure, Bodybuilding.com grew tremendously, achieving annual sales of over $200,000,000 in 2010.

 

Lawrence S. Meer, age 51, Chief Financial Officer

 

Mr. Meer has served as Chief Financial Officer of the Company since July 2010. Prior to becoming the Chief Financial Officer he was the Director of Finance at Muscle Pharm, LLC from October 2009 to July 2010. His other past experience includes daily cash management and treasury functions, including the establishment of credit and collection procedures to maximize cash flow, reduce corporate debt and enhance shareholder value. He previously served as President and Chief Financial Officer in Miami, FL, at Color It, Inc., a textile finishing business, from March 2002 to December 2008. Mr. Meer also previously served as Executive Vice President at Customer Assets in Denver, CO, an India-based call center, from 2000 to 2002. Prior to joining Customer Assets, he was Chief Financial Officer and Chief Operating Officer at GS Sportswear in Denver, CO, a sportswear promotional company, from 1998 to 2000. Mr. Meer also served as Chief Financial Officer at Davis Audio-Visual, Inc., a retailer of audio-visual equipment, from 1996 to 1998; and Vice President of Finance at Pacer Cats in Englewood, CO., a ticketing and concession software provider from 1991 to 1996. Mr. Meer earned a BS in accounting from the University of Colorado at Boulder.

 

John H. Bluher, age 54, Chief Operating Officer

 

Mr. Bluher is a specialist in corporate governance for growing companies.  He is also a specialist in investment management, capital structuring, merger and acquisition, private equity and valuations of public and private companies.  He has significant experience working with corporate structuring, corporate boards and committees, risk management, and public company corporate governance.  His experience also includes negotiating transactions and purchases, and sales of assets and properties on a global basis.  He has deep experience in creating and implementing corporate governance plans, working in the corporate board room, and as director of risk, developing internal audit programs and insurance programs for public companies.  During 2010, Mr. Bluher provided consulting services to a leading financial advisory and management consultant firm. Mr. Bluher was responsible for managing transactions, business development, developing corporate governance standards and corporate structuring for companies.  Since December 2009, Mr. Bluher assisted in raising capital, marketing and co-managed Coachman Energy Funds at Caddis Capital, LLC, a private equity portfolio focused on oil and gas investments.  From February 2010 to August 2010, Mr. Bluher acted as investment banker and special financial advisor to the AARP Mutual Fund Board of Trustees in a platform divestiture.  From December 2007 to May 2009, Mr. Bluher served as managing director and general counsel at Lehman Brothers, Inc.’s (NYSE:LEH) investment management division.  Mr. Bluher also served as global chief legal and compliance officer and managing director of Neuberger Berman during this period.  From August 2004 to June 2007, Mr. Bluher served as general counsel and director of risk and Janus Capital, Inc. (NYSE:JNS).  From June 2002 to July 2004, Mr. Bluher served as executive vice president, general counsel and corporate secretary and director of risk management of Knight Trading Group (NASDAQ:NITE).  From January 2001 to May 2002, Mr. Bluher served as senior vice president and global chief compliance officer for Prudential Securities, Inc. (NYSE:PRU).  From October 1997 to January 2001, Mr. Bluher served as general counsel and chief compliance officer of Sun America, Inc. (NYSE:SAI) later (NYSE:AIG).  From 1992 – 1997, Mr. Bluher served as senior vice president, regional and divisional Counsel at Prudential Securities, Inc.  From 1987 to 1992, Mr. Bluher was senior counsel for the Division of Enforcement at the Securities and Exchange Commission.  Mr. Bluher holds a Bachelor of Science and a J.D. degree from the University of Wyoming and holds FINRA Series 7, Series 24 and Series 14 licenses.  He has served on the boards of ICI Mutual Insurance Company, the NASDAQ Chairman’s Advisory Board, Cherry Hills Founders Group, Inc., Targeted Medical Pharma, Inc., Arete Industries, Inc., and Safe Communications, Inc., and the University of Wyoming Foundation Board, and College of Law Advisory Board. Mr. Bluher is a frequent speaker at financial services industry meetings and conferences.

 

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Advisory Board

 

We have established an Advisory Board currently consisting of nine members, which serves to advise management with respect to product formulations, product ideas, marketing and related matters. Members of the Advisory Board do not meet on a formal or regular basis. Our management team consults with one or more members of the Advisory Board as needed, from time to time, by means of meetings or telephone conference calls.

 

Following is a brief description of the background of our advisory board members:

 

Dr. Eric Serrano – Chief Medical Advisor . Dr. Serrano has been practicing medicine in the State of Ohio for over 12 years and is considered one of the leading sports nutrition doctors in the country. His clients include a wide array of athletes from the NFL, NHL, and MLB, in addition to many elite amateur athletes. Dr. Serrano was a professor of family practice medicine at Ohio State University, where he was awarded Professor of The Year and Preceptor of The Year. Dr. Serrano currently lectures across the country to universities, medical groups and health & fitness conferences on the topics of sports nutrition, performance enhancement, and injury prevention. Dr. Serrano’s expertise in blood analysis, sports nutrition, and injury prevention gives athletes the advantage over the competition. He has formulated numerous nutritional supplements for some of the leading nutritional companies on the market and also been a contributing writer for some of the leading health and fitness magazines. Dr. Serrano has been involved in the final formulations for each of our products. Dr. Serrano received his B.A. from Kansas State University in Biology, his M.A. from Kansas State University in Exercise Physiology, and his M.D. from the University of Kansas Medical School.

 

Roscoe M. Moore, Jr. – Chief Scientific Director. A Former U.S. Assistant Surgeon General, Dr. Roscoe M. Moore, Jr. served with the United States Department of Health and Human Services (HHS) and was for the last twelve years of his career the principal person responsible for global development support within the Office of the Secretary, HHS, with primary emphasis on Continental Africa and other less developed countries of the world (e.g. Indonesia, Malaysia, and Vietnam). He was the principal liaison person between the HHS and Ministries of Health in Africa with regard to the development of infrastructure and technical support for the delivery of preventive and curative health needs for the continent. Dr. Moore represented the HHS in cooperative international efforts with African nations in addressing continued health and human resource problems. Dr. Moore received his undergraduate and Doctor of Veterinary Medicine degrees from Tuskegee Institute; his Master of Public Health degree in Epidemiology from the University of Michigan; and his Doctor of Philosophy degree in Epidemiology from the Johns Hopkins University. He was awarded the Doctor of Science degree (Honoris Causa) in recognition of his distinguished public health career by Tuskegee University. Dr. Moore was a career officer within the Commissioned Corps of the United States Public Health Service (USPHS) entering with the U.S. National Institutes of Health and rising to the rank of Assistant United States Surgeon General (Rear Admiral, USPHS) within the Immediate Office of the Secretary, HHS. He was selected as Chief Veterinary Medical Officer, USPHS, by Surgeon General C. Everett Koop.

 

Dr. Richard Ogden PHD, (CSCS) – Medical Advisor

 

Dr. Odgen's career in clinical research and development spans nearly forty years. After earning a Ph.D. from Cambridge University, his career started with postdoctoral research studying RNA transcription and processing. Following that, he undertook independent research, funded by the National Science Foundation. In 1984, he joined Agouron Pharmaceuticals, Inc. as one of its founding scientists. Following Agouron's merger with Pfizer, he served as a Senior Director and was the scientific liaison for the Agouron/Pfizer commercial and corporate organizations. In this role, he worked with organizations all over the world. In 2006, Dr. Ogden, co-founded RORR Inc., a medical, scientific Consulting and Education company with clients in the U.S. and Europe. In addition to publication in numerous medical journals, he is co-editor of two books relating to AIDS therapy.

 

Dr. Michael Ray Stevens – Advisor. Dr. Stevens has over twenty years of well diversified experience in the healthcare and pharmaceutical industry. Dr. Stevens spent 17 years at Bristol-Myers Squibb, where he held positions of increasing responsibility in the areas of Market Research (Oncology and HIV), Marketing (Oncology), and Medical Affairs (HIV). In addition served as a member of the Executive Council for the Forum for Collaborative HIV Research — a public-private partnership facilitating discussion on emerging issues in HIV clinical research and working to translate research results into patient care. He has also served on 15 Protocol Committees within the Adult AIDS Clinical Trials Group (ACTG). Michael received his BS Pharmacy and Doctor of Pharmacy degrees from Purdue University.

 

29
 

 

Dr. Ron Sekura – Director of Therapeutic Research. Dr. Sekura is the former Chief of the Pharmaceutical and Regulatory Affairs Branch of the Division of AIDS at The National Institute of Allergy and Infectious Diseases (NIAID) of the National Institute of Health (NIH) as well as a former Research Chemist at The National Institute of Child Health and Human Development (NICHD) at the NIH and the Center for Biologics Evaluation and Research (CBER), and FDA. He received his Bachelor of Science and Master of Science in Biochemistry degrees at Pennsylvania State University and his PhD at Cornell University. Dr. Sekura is the author of over sixty scientific publications.

 

Mariel Selbovitz – Director of Global Therapeutics Product Procurement Development.   Ms. Selbovitz is a graduate of Cornell University and received her Master’s in Public Health at the Johns Hopkins University Bloomberg School of Health. She worked as the Client Intake Specialist at Positive Health Project and Syringe Exchange Program Coordinator at the Foundation for Research on Sexually Transmitted Diseases and is a partner in BioEquity Partners. Selbovitz is a member of the Cornell AIDS Clinical Trials Group Community Advisory Board and AIDS Treatment Advocacy Coalition. She presented at the 5th European Conference on Clinical and Social Research on AIDS and Drugs, International Conference on Antiviral Research, 5th IAS Conference on HIV Pathogenesis, Treatment and Prevention and XVIII International AIDS Conference.

 

Louie Simmons – Chief Strength Advisor. Mr. Simmons is a strength consultant for the New England Patriots, Green Bay Packers, Seattle Seahawks, Cleveland Browns, and numerous Football Bowl Subdivision college football teams. Mr. Simmons is the owner of the West Side Barbell, located in Columbus, Ohio.

 

Greg Jackson – Director of Fight Development. Mr. Jackson is an expert in mixed martial arts, representing a combination of basic Judo and wrestling. He has trained and developed top-ranked fight teams, with several fights appearing on spike TV’s Ultimate Fighter.

 

Paul Dillet – Chief Bodybuilding Advisor. Mr. Paul Dillet is one of the most influential bodybuilders and a legend in the bodybuilding world. He has been instrumental in creating a new era in fitness and bodybuilding for the everyday athlete.

 

Legal Proceedings

 

None of the members of the board of directors or other executives has been involved in any bankruptcy proceedings, criminal proceedings, any proceeding involving any possibility of enjoining or suspending members of our board of directors or other executives from engaging in any business, securities or banking activities, and have not been found to have violated, nor been accused of having violated, any Federal or State securities or commodities laws.

 

Director Independence

 

On an annual basis, each director and executive officer will be obligated to disclose any transactions with our Company and any of its subsidiaries in which a director or executive officer, or any member of his or her immediate family, have a direct or indirect material interest. Following completion of these disclosures, our board of directors will make an annual determination as to the independence of each director using the current standards for “independence” that satisfy both the criteria for the Nasdaq and the NYSE Amex Equities.

 

As of December 31, 2011, the board of directors determined that the Company does not currently have any directors that are considered “independent” under the aforementioned standards.

 

Committees of the Board of Directors

 

Concurrent with having sufficient members and resources, the board of directors intends to establish an audit committee and a compensation committee. The audit committee will review the results and scope of the audit and other services provided by the independent auditors and review and evaluate the system of internal controls. The compensation committee will review and recommend compensation arrangements for the officers and employees. No final determination has yet been made as to the memberships of these committees or when we will have sufficient members to establish committees. We believe that we will need a minimum of three (3) independent directors to have effective committee systems.

 

30
 

 

Item 11. Executive Compensation.

 

Summary Compensation Table

 

The following summary compensation tables sets forth all compensation awarded to, earned by, or paid to the named executive officers and directors by us during the period ended December 31, 2011, 2010, and 2009.

 

                       Non-Equity         
                       Incentive         
               Stock   Option   Plan   All Other     
Name and Principal Position  Year   Salary 
($)
   Bonus 
($)
   Awards 
($)
   Awards 
($)
   Compen-
sation ($)
   Compen-
sation ($)
   Total ($) 
Brad J. Pyatt   2011   $250,000   $170,410   $1,555,921   $0   $0   $0   $1,976,331 
Chief Executive Officer   2010   $194,821   $0   $2,650,000   $0   $0   $0   $2,844,821 
    2009   $133,992   $0   $0   $0   $0   $0   $133,992 
                                         
Cory Gregory   2011   $150,000   170 ,410   $1,555,921   $0   $0   $0   $1,876,331 
Senior President   2010   $78,892   $0   $2,650,000   $0   $0   $0   $2,728,892 
    2009   $17,846   $0   $0   $0   $0   $0   $17,846 
                                         
Lawrence S. Meer   2011   $74,400   $0   $0   $0   $0   $0   $74,400 
Chief Financial Officer   2010   $75,493   $0   $0   $228,000(1)  $0   $0   $303,493 
                                         
Leonard K. Armenta (2)   2011   $86,400   $0   $0   $0   $0   $0   $86,400 
Former Executive Vice President   2010   $83,215   $0   $0   $228,000(1)  $0   $0   $311,215 
    2009   $54,799   $0   $0   $0   $0   $0   $54,799 
                                         
Jeremy DeLuca   2011   $65,833   $170,410   $1,555,921   $0   $0   $0   $1,792,164 
President, Chief Marketing Officer                                        
                                         
John H. Bluher   2011   $36,458   $50,000   $00   $0   $0   $0   $86,458 
Chief Operating Officer                                        

 

Explanatory Information Relating to 2011 Summary Compensation Table

 

Please note the following points in connection with the information in the 2011 Summary Compensation Table:

 

The compensation of the executive officers of the Company is reviewed on an annual basis by the board of directors.  Each year, the Company considers whether to adjust the base salaries of senior management, including the executive officers, in order to reward individual performance, keep pace with cost of living increases and respond to competitive considerations.

 

31
 

 

2011 OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END

 

OPTION AWARDS  STOCK AWARDS 
Name (a)  Number of
Securities
Underlying
Unexercised
Options
Exercisable
(#)
(b)
   Number of
Securities
Underlying
Unexercised
Options
Unexercisable
(#)
(c)
   Equity
Incentive
Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options
(#)
(d)
   Option
Exercise
Price
($)
(e)
   Option
Expiration
Date
(f)
   Number
of Shares
or Units
of Stock
That Have
Not
Vested
(#)
(g)
   Market
Value of
Shares or
Units of
Stock
That
Have Not
Vested
($)
(h)
   Equity
Incentive
Plan
Awards:
Number of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
(#)
(i)
   Equity
Incentive
Plan
Awards:
Market or
Payout
Value of
Unearned
Shares,
Units or
Other
Rights
That
Have Not
Vested
(#)
(j)
 
                                     
Brad J. Pyatt
Chief Executive Officer
   -    -    -    -    -    -    -    -    - 
                                              
Cory Gregory
Senior President
   -    -    -    -    -    -    -    -    - 
                                              
Lawrence S. Meer
Chief Financial Officer
   1,000,000(1)   -    -   $0.50    4/2/2015    -    -    -    - 
                                              
Leonard K. Armenta (2)
Former Executive VP
   -   -    -    -    -    -    -    -    - 
                                              
Jeremy DeLuca
Chief Marketing Officer President
   -    -    -    -    -    -    -    -    - 
                                              
John H. Bluher
Chief Operating Officer
   -    -    -    -    -    -    -    -    - 

 

(1)Represents 1,000,000 options issued, valued on the date of grant, April 2, 2010.

 

(2)Resigned on September 16, 2011.

32
 

 

Director Compensation

 

The following summary compensation table sets forth all compensation awarded to, earned by, or paid to the named directors by us during the years ended December 31, 2011, 2010 and 2009.

 

                       Non-Equity         
Name                      Incentive         
and              Stock   Option   Plan   All Other     
Principal
Position
  Year   Salary
($)
   Bonus
($)
   Awards
($)
   Awards
($)
   Compensation
($)
   Compensation
($)
   Total
($)
 
(a)  (b)   (c)   (d)   (e)   (f)   (g)   (h)   (i) 
Brad J. Pyatt   2011   $0   $0   $0   $0   $0   $0   $0 
Director   2010   $0   $0   $0   $0   $0   $0   $0 
    2009   $0   $0   $0   $0   $0   $0   $0 
                                         
Cory Gregory   2011   $0   $0   $0   $0   $0   $0   $0 
Director   2010   $0   $0   $0   $0   $0   $0   $0 
    2009   $0   $0   $0   $0   $0   $0   $0 

 

Employment Agreements

 

Brad J. Pyatt, Chief Executive Officer

 

On August 15, 2011, the Company entered into an employment agreement (the “Pyatt Employment Agreement”) with Brad J. Pyatt, individually, pursuant to which Mr. Pyatt will serve as the Company’s Chief Executive Officer (the “CEO”). The term of the Pyatt Employment Agreement is for a period of sixty (60) months, commencing retroactively on January 1, 2011, and expiring on December 31, 2015 (the “Pyatt Term”). Pursuant to the terms of the Employment Agreement, the CEO is to receive a base salary of $250,000 for the 2011 calendar year; $350,000 for the 2012 calendar year; $400,000 for the 2013 calendar year; $450,000 for the 2014 calendar year; and $500,000 for the 2015 calendar year. Further, the CEO shall receive, upon execution of the Pyatt Employment Agreement, 31 shares of the Company’s Series B Preferred Stock. In addition, upon the three year anniversary of the Pyatt Employment Agreement, the CEO shall receive 10,000 shares of the Company’s Series A Preferred Stock.

 

During the Pyatt Term, the CEO’s responsibilities will include all aspects of the day to day business operations of the Company. The CEO shall also be responsible for determining necessary strategic partnerships and investment opportunities relating to the Company, both nationally and internationally, and shall have wide discretion in implementing the vision, strategic goals and operational mission of the Company. The CEO shall, on a full time and exclusive basis, devote all of his business time, attention and energies to the operations of the Company and other duties as required by the Pyatt Employment Agreement, and shall use his best efforts to advance the best interests of the Company.

 

On November 14, 2011, the Company entered into an amended and restated employment agreement with Mr. Pyatt. The parties amended the Pyatt Employment Agreement in order to amend section 3(c) as it relates to Mr. Pyatt’s bonus payment. The amended Pyatt Employment Agreement now provides that, for each one million dollars ($1,000,000) in revenue growth achieved by the Company from the revenue figure reported for the prior fiscal year, Mr. Pyatt shall receive (i) ten thousand dollars ($10,000) and (ii) one hundred thousand dollars ($100,000) worth of the Company’s common stock, such stock to be valued based on the average closing price for the twenty (20) trading days prior to the date of issuance of such stock. The aforementioned payments to Mr. Pyatt shall be made within 90 days after the end of the Company’s fiscal year.

 

Cory Gregory, Senior President

 

On August 15, 2011, the Company entered into an employment agreement (the “Gregory Employment Agreement”) with Cory Gregory, individually, pursuant to which Mr. Gregory will serve as the Company’s Senior President (the “Senior President”). The term of the Gregory Employment Agreement is for a period of sixty (60) months, commencing retroactively on January 1, 2011, and expiring on December 31, 2015 (the “Gregory Term”). Pursuant to the terms of the Gregory Employment Agreement, the Senior President is to receive a base salary of $150,000 for the 2011 calendar year; $200,000 for the 2012 calendar year; $250,000 for the 2013 calendar year; $300,000 for the 2014 calendar year; and $350,000 for the 2015 calendar year. Further, the Senior President shall receive, upon execution of the Gregory Employment Agreement, 20 shares of the Company’s Series B Preferred Stock. In addition, upon the three year anniversary of the Gregory Employment Agreement, the Senior President shall receive 10,000 shares of the Company’s Series A Preferred Stock.

 

33
 

 

During the Gregory Term, the Senior President’s responsibilities will include, but shall not be limited to, on a full time and exclusive basis, devoting all of his business time, attention and energies to the operations of the Company and other duties as required by the Gregory Employment Agreement and as directed by the Board of Directors, and shall use his best efforts to advance the best interests of the Company.

 

On November 14, 2011, the Company entered into an amended and restated employment agreement with Mr. Gregory. The parties amended the Gregory Employment Agreement in order to amend section 3(c) as it relates to Mr. Gregory’s bonus payment. The amended Gregory Employment Agreement now provides that, for each one million dollars ($1,000,000) in revenue growth achieved by the Company from the revenue figure reported for the prior fiscal year, Mr. Gregory shall receive (i) ten thousand dollars ($10,000) and (ii) one hundred thousand dollars ($100,000) worth of the Company’s common stock, such stock to be valued based on the average closing price for the twenty (20) trading days prior to the date of issuance of such stock. The aforementioned payments to Mr. Gregory shall be made within 90 days after the end of the Company’s fiscal year.

 

John H. Bluher, Chief Operating Officer

 

On September 16, 2011, the Company entered into an employment agreement (the “Bluher Employment Agreement”) with John H. Bluher, individually (“Bluher”), appointing Bluher as the Company’s Chief Operating Officer.

 

Pursuant to the terms of the Bluher Employment Agreement, Bluher is to serve as the Company’s Chief Operating Officer from September 16, 2011 (the “Bluher Effective Date”), until September 15, 2013 (the “Bluher Term”). Upon expiration of the Bluher Term, the Bluher Employment Agreement shall be automatically renewed unless either the Company or Bluher provides the other party with written notice at least sixty (60) days prior to the last date of the respective term. During the Bluher Term, Bluher’s responsibilities will include general oversight and management of the Company’s daily operations, as well as any responsibilities delegated to him by the Company’s Chief Executive Officer or board of directors (the “Bluher Duties”).

 

In consideration for performance of the Bluher’s Duties during the Term, Bluher is to receive an initial base salary of one hundred and seventy five thousand dollars ($175,000) per year (the “Bluher Base Salary”), any increases to such salary during the Bluher Term to be determined at the discretion of the Company. Bluher is also eligible to receive an annual performance bonus based on certain goals and performances levels mutually established by the parties.

 

Bluher was also entitled to receive, beginning on December 31, 2012, and on each successive calendar year end thereafter, stock options to purchase shares of the Company’s common stock in the amount of five hundred thousand dollars ($500,000) (the “2012 Options”). The 2012 Options were to be exercisable into shares of the Company’s common stock at an exercise price equal to the average of the high and low reported selling prices of the Company’s common stock on the date of grant and vest in accordance with the schedule outlined in the Bluher Employment Agreement.

 

On March 13, 2012, the Company and Bluher executed an amendment to the Bluher Employment Agreement, whereby Bluher waived his rights to the equity based compensation in both the Bluher Employment Agreement and a consulting agreement with Endion Capital, LLC, and now is to receive (i) 20,000,000 shares of the Company’s common stock with piggy-back registration rights, subject to a lock-up period of one year and (ii) a warrant to purchase 10,000,000 shares of the Company’s common stock at an exercise price of $0.008 per share, subject to a lock-up period of six months.

 

Jeremy DeLuca, President, Chief Marketing Officer

 

On November 14, 2011 (the “DeLuca Execution Date”), the Company entered into an employment agreement (the “DeLuca Employment Agreement”) with Jeremy DeLuca, the Company’s President and Chief Marketing Officer (the “President”). The term of the DeLuca Employment Agreement commences on the DeLuca Execution Date and expires on December 31, 2014 (the “DeLuca Term”). Pursuant to the terms of the DeLuca Employment Agreement, the President is to receive a base salary of $125,000 for the 2011 calendar year; $175,000 for the 2012 calendar year; $225,000 for the 2013 calendar year; and $300,000 for the 2014 calendar year. In addition, upon the three year anniversary of the DeLuca Employment Agreement, the President shall receive 5,000 shares of the Company’s Series A Preferred Stock.

 

34
 

 

During the DeLuca Term, the President’s responsibilities will include all aspects of the day to day business operations of the Company. The President shall also be responsible for determining necessary strategic partnerships and investment opportunities relating to the Company, both nationally and internationally, and shall have wide discretion in implementing the vision, strategic goals and operational mission of the Company. The President shall, on a full time and exclusive basis, devote all of his business time, attention and energies to the operations of the Company and other duties as required by the DeLuca Employment Agreement, and shall use his best efforts to advance the best interests of the Company.

 

Item 12.  Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

 

The following table sets forth information known to MusclePharm with respect to the beneficial ownership of MusclePharm’s common stock as of April 13, 2012, unless otherwise noted, by:

 

·each stockholder known to MusclePharm to own beneficially more than 5% of MusclePharm’s common stock;

 

·each of MusclePharm’s directors;

 

·each of MusclePharm’s executive officers; and

 

·all of MusclePharm’s current directors and executive officers as a group.

 

Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or dispositive power with respect to securities. Common shares relating to options or warrants currently exercisable, or exercisable within 60 days of April 12, 2012, are deemed outstanding for computing the percentage of the person holding such securities but are not deemed outstanding for computing the percentage of any other person. Except as indicated by footnote, and subject to the community property laws where applicable, the persons or entities named in the tables have sole voting and dispositive power with respect to all shares shown as beneficially owned by them.

 

   Amount and   Percentage 
   Nature of   of 
   Beneficial   Beneficial 
Name and Address of Beneficial Owner  Ownership   Ownership (1) 
         
Brad J. Pyatt   166,962,288    11.6%
4721 Ironton St          
Denver, CO 80239          
           
Cory Gregory   158,665,986    11.0%
4721 Ironton St          
Denver, CO 80239          
           
Lawrence S. Meer   0    0%
4721 Ironton St          
Denver, CO 80239          
           
Jeremy DeLuca   148,182,972    10.2%
4721 Ironton St          
Denver, CO 80239          
           
John H. Bluher   0    0%
4721 Ironton St          
Denver, CO 80239          
           
All executive officers and directors as a group (5 persons)   473,811,226    32.8%
           
Drew Ciccarelli   105,000,000(2)    7.27
           
All executive officers, directors and 5% holders as a group   578,811,226    40.07%

 

35
 

 

(1)Percent of class based on 1,444,521,399 common shares outstanding as of April 12, 2012. This percentage does not include preferred stock ownership or other ownership of convertible securities.
   
 (2)These shares are held by Mr. Ciccarelli individually, and through (i) TSX Ventures, LLC, a South Carolina limited liability company and (ii) Five Star Consulting, LLC, a Nevada limited liability company, entities of which Mr. Ciccarelli maintains sole dispositive voting power.

 

Changes in Control

 

We are not aware of any arrangements that may result in “changes in control” as that term is defined by the provisions of Item 403(c) of Regulation S-K.

 

Item 13. Certain Relationships and Related Transactions, and Director Independence.

 

Any future transactions or loans between us and our officers, directors, principal stockholders or affiliates will be on terms no less favorable to us than could be obtained from an unaffiliated third party, and will be approved by a majority of disinterested directors.

 

On February 18, 2010, the Company issued a total of 26,000,000 shares of its common stock to the 12 former owners of Muscle Pharm, LLC in reliance on the exemption from registration provided by Section 4(2) of the Securities Act of 1933, as amended.

 

On November 18, 2010, Brad Pyatt, the Company’s Chief Executive Officer, loaned the Company $100,000 and received an 8% Convertible Promissory Note exchange. On November 23, 2010, Mr. Pyatt loaned the Company $256,250 and received an 8% Convertible Promissory Note in exchange.  On December 14, 2010, Mr. Pyatt converted all principal and accrued interest underlying the notes ($358,077.40) into 7,161,548 shares of the Company’s common stock.

 

Muscle Pharm, LLC was formed as a Colorado limited liability company on April 22, 2008. The initial owners of Muscle Pharm LLC were Brad J. Pyatt and Cory Gregory. Mr. Pyatt received a 60% membership interest in exchange for his contribution of formulations for potential products, contacts with GNC Canada and other potential customers, and contacts with professional athletes. Mr. Gregory received a 40% membership interest in exchange for his contacts with Dr. Serrano, Louie Simmons, potential distributors, professional athletes and potential investors. Neither Mr. Pyatt nor Mr. Gregory contributed any cash and no value was placed on their respective contributions.

 

Other than as set forth above, there are no transactions since our inception, or proposed transactions, to which we were or are to be a party, in which any of the following persons had or is to have a direct or indirect material interest:

 

(a)Any director or executive officer of the Company;

 

(b)Any majority security holder; and

 

36
 

 

(c)Any member of the immediate family (including spouse, parents, children, siblings, and in-laws) of any of the persons in the above.

 

37
 

 

Item 14. Principal Accountant Fees and Services.

 

Summary of Principal Accountant Fees for Professional Services Rendered

 

The following table presents the aggregate fees for professional audit services and other services rendered by Berman & Co., P.A., our independent registered public accountant in 2011 and 2010, respectively.

 

   Fiscal Year
Ended
   Fiscal Year
Ended
 
   December
31, 2011
   December
31, 2010
 
Audit and Audit Related Fees  $211,328   $110,000 
Tax Fees  $0   $0 
All Other Fees  $0   $0 

 

38
 

PART IV

 

Item 15. Exhibits, Financial Statement Schedules.

 

Exhibit No.   Description
     
2.1   Share Exchange Agreement, dated February 1, 2010, by and between Tone in Twenty, Inc. and Muscle Pharm LLC (as filed as Exhibit 2.1 on Form 8-K on February 2, 2010)
     
3.1   Tone In Twenty Articles of Incorporation, dated August 4, 2006 (as filed as Exhibit 3.1 to Company’s Form SB-2 Registration Statement, filed November 2, 2007)
     
3.2   Bylaws of MusclePharm Corporation, dated August 5, 2006 (as filed as Exhibit 3.2 to Company’s Form SB-2 Registration Statement, filed November 2, 2007)
     
3.3   Amendment to the Articles of Incorporation, dated February 23, 2007 (as filed as Exhibit 3.3 to Company’s Form SB-2 Registration Statement, filed November 2, 2007)
     
3.4   Series A Certificate of Designation (as filed as Exhibit 3.4 to the Company’s Current Report on Form 8-K, filed on February 24, 2010)
     
3.5   Amendment to the Articles of Incorporation (as filed as Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q, filed on May 23, 2011)
     
3.6   Series B Certificate of Designation (as filed as Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q, filed on August 16, 2011)
     
3.7   Series C Certificate of Designation, filed with the Secretary of State of the State of Nevada on October 25, 2011 (as filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on November 4, 2011)
     
3.8   Amendment to the Articles of Incorporation, dated November 17, 2011 (as filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on November 23, 2011)
     
3.9   Amendment to the Articles of Incorporation, dated January 18, 2012 (as filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on January 27, 2012)
     
3.10   Amendment to the Articles of Incorporation, dated March 26, 2012 (as filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on March 29, 2012)
     
4.1   $900,000 Convertible Promissory Note, dated June 7, 2011, issued in favor of JMJ Financial (as filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed on July 8, 2011)
     
4.2   $2,651,000 Senior Secured Convertible Promissory Note, dated June 29, 2011, issued in favor of Inter-Mountain Capital Corp. (as filed as Exhibit 4.1 to the Company’s Quarterly Report on Form 10-Q, filed on November 14, 2011)
     
4.3   Common Stock Purchase Warrant, dated June 29, 2011, issued in favor of Inter-Mountain Capital Corp. (as filed as Exhibit 4.2 to the Company’s Quarterly Report on Form 10-Q, filed on November 14, 2011)
     
4.4   Form of Promissory Note (as filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed on December 12, 2011)
     
4.5   Form of Common Stock Purchase Warrant (as filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K, filed on December 12, 2011)
     
10.1   Sponsorship Agreement, dated January 18, 2011, by and between MusclePharm Corporation, and The Cincinnati Reds LLC (as filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on January 24, 2011)

 

39
 

  

10.2   Registration Rights Agreement, dated June 7, 2011, by and between the Company and JMJ Financial (as filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on July 8, 2011)
     
10.3   Stock Purchase Agreement, dated July 7, 2011, by and between MusclePharm Corporation and Carriage Group, LLC (as filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on July 19, 2011)
     
10.4   Endorsement Agreement, dated July 20, 2011, by and between MusclePharm Corporation and Michael Vick, individually (as filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on July 22, 2011)
     
10.5   Note and Warrant Purchase Agreement, dated June 29, 2011, by and between MusclePharm Corporation and Inter-Mountain Capital Corp. (as filed as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q, filed on November 14, 2011)
     
10.6   Employment Agreement, dated September 16, 2011, by and between MusclePharm Corporation and John H. Bluher, individually (as filed as Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q, filed on November 14, 2011)
     
10.7   Employment Agreement, dated November 14, 2011, by and between MusclePharm Corporation and Jeremy DeLuca, individually (as filed as Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q, filed on November 14, 2011)
     
10.8   Amended and Restated Employment Agreement, dated November 14, 2011, by and between MusclePharm Corporation and Brad Pyatt, individually *
     
10.9   Amended and Restated Employment Agreement, dated November 14, 2011, by and between MusclePharm Corporation and Cory Gregory, individually *
     
10.10   Stock Purchase Agreement, dated December 2, 2011, by and between MusclePharm Corporation and TSX Holdings, LLC (as filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on December 8, 2011)
     
10.11   Amendment No. 1 to Stock Purchase Agreement, dated December 8, 2011, by and between MusclePharm Corporation and Carriage Group, LLC (as filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on December 9, 2011)
     
10.12   Form of Subscription Agreement (as filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on December 12, 2011)
     
10.13   Equity Purchase Agreement, dated November 4, 2011, by and between MusclePharm Corporation and Southridge Partners II, LP (as filed as Exhibit 10.8 to the Company’s Registration Statement on Form S-1/A, filed on December 29, 2011)
     
10.14   Registration Rights Agreement, dated November 4, 2011, by and between MusclePharm Corporation and Southridge Partners II, LP (as filed as Exhibit 10.9 to the Company’s Registration Statement on Form S-1/A, filed on December 29, 2011)
     
31.1   Certification by the Principal Executive Officer of Registrant pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 13a-14(a) or Rule 15d-14(a))
     
31.2   Certification by the Principal Financial Officer of Registrant pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 13a-14(a) or Rule 15d-14(a))

  

40
 

  

32.1   Certification by the Principal Executive Officer pursuant to 18 U.S.C. 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
     
32.2   Certification by the Principal Financial Officer pursuant to 18 U.S.C. 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

*Filed herewith

 

41
 

 

SIGNATURES

 

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

  

  MUSCLEPHARM CORPORATION
     
Dated: April 16, 2012 By: /s/ Brad J. Pyatt
    Brad J. Pyatt
   

Chief Executive Officer

Principal Executive Officer

  

Dated: April 16, 2012 By: /s/ Lawrence S. Meer
    Lawrence S. Meer
   

Chief Financial Officer

Principal Financial Officer

Principal Accounting Officer

 

PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, THIS REPORT HAS BEEN SIGNED BY OR ON BEHALF OF THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED:

 

Signature   Title   Date
         
/s/ Brad J. Pyatt   Chairman, Chief Executive Officer,   April 16, 2012
Brad J. Pyatt   Principal Executive Officer    
         
/s/ Cory Gregory   Senior President, Director   April 16, 2012
Cory Gregory        
         
/s/ Lawrence S. Meer   Chief Financial Officer, Principal Financial Officer,    April 16, 2012
Lawrence S. Meer   Principal Accounting Officer    
         
/s/ Jeremy DeLuca   President and Chief Marketing Officer   April 16, 2012
Jeremy DeLuca        
         
/s/ John H. Bluher   Chief Operating Officer   April 16, 2012
John H. Bluher        

 

42
 

  

MusclePharm Corporation

Consolidated Financial Statements

December 31, 2011 and 2010

 

CONTENTS

 

    Page(s)
     
Report of Independent Registered Public Accounting Firm   F-1
     
Consolidated Balance Sheets – December 31, 2011 and 2010   F-2
     
Consolidated Statements of Operations –    
Years Ended December 31, 2011 and 2010   F-3
     
Consolidated Statement of Stockholders’ Deficit –    
Years Ended December 31, 2011 and 2010   F-4
     
Consolidated Statements of Cash Flows –    
Years Ended December 31, 2011 and 2010   F-5
     
Notes to Consolidated Financial Statements -    
Years Ended December 31, 2011 and 2010   F-6 – F-23

 

 
 

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Stockholders of:

MusclePharm Corporation


We have audited the accompanying consolidated balance sheets of MusclePharm Corporation and Subsidiary as of December 31, 2011 and 2010, and the related consolidated statements of operations, stockholders’ deficit and cash flows for the years then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.

 

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.


In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of MusclePharm Corporation and Subsidiary as of December 31, 2011 and 2010, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.

 

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to the financial statements, the Company has a net loss of $23,280,950 and net cash used in operations of $5,801,761 for the year ended December 31, 2011; and has a working capital deficit of $13,693,267, and a stockholders’ deficit of $12,971,212 at December 31, 2011. These factors raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plan in regards to these matters is also described in Note 2.

 

Berman & Company, P.A.

 

 Boca Raton, Florida

April 13, 2012

 

551 NW 77th Street Suite 201 Ÿ Boca Raton, FL 33487

Phone: (561) 864-4444 Ÿ Fax: (561) 892-3715

www.bermanscpas.comŸ info@bermancaps.com

Registered with the PCAOB Ÿ Member AICPA Center For Audit Quality

Member American Institute of Certified Public Accountants

Member Florida Institute of Certified Public Accountants

  

F-1
 

 

MusclePharm Corporation and Subsidiary

Consolidated Balance Sheets

 

   December 31, 2011   December 31, 2010 
         
Assets          
           
Current Assets          
Cash  $659,764   $43,704 
Accounts receivable - net   2,569,092    426,761 
Prepaid stock compensation   534,456    1,965,911 
Prepaid sponsorship fees   203,333    - 
Other   50,188    58,065 
Total Current Assets   4,016,833    2,494,441 
           
Property and equipment - net   907,522    138,551 
           
Debt issue costs - net   68,188    34,404 
           
Other assets   53,585    53,585 
           
Total Assets  $5,046,128   $2,720,981 
           
Liabilities and Stockholders' Deficit          
           
Current Liabilities:          
Accounts payable and accrued liabilities  $9,359,073   $3,227,483 
Customer deposits   8,047    75,733 
Debt - net   1,281,742    289,488 
Derivative liabilities   7,061,238    622,944 
Total Current Liabilities   17,710,100    4,215,648 
           
Long Term Liabilities:          
Debt - net   307,240    250,000 
           
Total Liabilities   18,017,340    4,465,648 
           
Stockholders' Deficit          
Series A, Convertible Preferred Stock,  $0.001 par value; 5,000,000 shares authorized, none issued and outstanding   -    - 
Series B, Preferred Stock,  $0.001 par value; 51 shares authorized, 51 and none, respectively, issued and outstanding   -    - 
Series C, Convertible Preferred Stock,  $0.001 par value; 500 shares authorized, 190 and none, respectively, issued and outstanding   -    - 
Common Stock,  $0.001 par value; 2,500,000,000 shares authorized,605,930,613 and 118,649,439 issued and outstanding   605,931    118,649 
Additional paid-in capital   31,579,538    20,012,122 
Accumulated deficit   (45,156,681)   (21,875,438)
Total Stockholders' Deficit   (12,971,212)   (1,744,667)
           
Total Liabilities and Stockholders' Deficit  $5,046,128   $2,720,981 

 

See accompanying notes to consolidated financial statements

 

F-2
 

 

MusclePharm Corporation and Subsidiary

Consolidated Statements of Operations

 

   Year Ended December 31, 
   2011   2010 
         
Sales - net  $20,838,337   $4,047,295 
           
Cost of sales   14,470,614    2,804,274 
           
Gross profit   6,367,723    1,243,021 
           
General and administrative expenses   22,587,883    19,494,857 
           
Loss from operations   (16,220,160)   (18,251,836)
           
Other income (expense)          
Derivative expense   (4,777,654)   (93,638)
Change in fair value of derivative liabilities   5,162,100    (149,306)
Loss on settlement of accounts payable and debt   (3,862,458)   (433,400)
Interest expense   (3,711,278)   (480,589)
Other expense   (121,500)   (160,568)
Licensing income   250,000    - 
Total other income (expense) - net   (7,060,790)   (1,317,501)
           
Net loss  $(23,280,950)  $(19,569,337)
           
Net loss available to common stockholders          
Net loss  $(23,280,950)  $(19,569,337)
Series C preferred stock dividend   (293)   - 
Net loss available to common stockholders  $(23,280,657)  $(19,569,337)
           
Net loss per share available to common stockholders (basic and diluted)  $(0.08)  $(0.48)
           
Weighted average number of common shares outstanding during the year - basic and diluted   281,484,658    41,141,549 

 

See accompanying notes to consolidated financial statements

 

F-3
 

 

MusclePharm Corporation and Subsidiary

Consolidated Statement of Stockholders' Deficit

Years Ended December 31, 2011 and 2010

 

   Series A, Convertible Preferred Stock   Series B, Preferred Stock   Series C, Convertible Preferred Stock   Common Stock   Additional Paid-   Accumulated   Total
Stockholders’
 
   Shares   Amount   Shares   Amount   Shares   Amount   Shares   Amount   in Capital   Deficit   Deficit 
                                             
Balance - December 31, 2009   -   $-    -   $-    -   $-    26,000,000   $26,000   $1,099,508   $(2,306,101)  $(1,180,593)
                                                        
Recapitalization and deemed issuance   83,333    83    -    -    -    -    70,838    71    (25,261)   -    (25,107)
                                                        
Issuance of common stock:                                                       
Conversion of preferred stock to common stock   (83,333)   (83)   -    -    -    -    16,666,600    16,667    (16,584)   -    - 
Conversion of convertible debt to common stock   -    -    -    -    -    -    7,708,906    7,709    1,025,791    -    1,033,500 
Stock and warrants   -    -    -    -    -    -    4,167,767    4,168    1,524,508    -    1,528,676 
Services - third parties   -    -    -    -    -    -    22,457,214    22,457    4,532,158    -    4,554,615 
Services - third parties - future services   -    -    -    -    -    -    10,545,200    10,545    2,724,003    -    2,734,548 
Services - related parties   -    -    -    -    -    -    10,000,000    10,000    5,290,000    -    5,300,000 
Services paid with previously issued stock to related parties   -    -    -    -    -    -    -    -    1,039,500    -    1,039,500 
Settlement of debt - third parties   -    -    -    -    -    -    4,165,571    4,166    1,186,898    -    1,191,064 
Settlement of debt - related party   -    -    -    -    -    -    7,161,548    7,161    350,916    -    358,077 
Settlement of accounts payable   -    -    -    -    -    -    9,014,286    9,014    424,386    -    433,400 
Debt offering - additional interest expense   -    -    -    -    -    -    50,000    50    30,450    -    30,500 
Extension of debt maturity date   -    -    -    -    -    -    130,000    130    95,370    -    95,500 
Contract settlement in connection with lawsuit   -    -    -    -    -    -    511,509    511    99,489    -    100,000 
Share based payments   -    -    -    -    -    -    -    -    630,990    -    630,990 
Net loss   -    -    -    -    -    -    -    -    -    (19,569,337)   (19,569,337)
                                                        
Balance - December 31, 2010   -    -    -    -    -    -    118,649,439    118,649    20,012,122    (21,875,438)   (1,744,667)
                                                        
Issuance of common and preferred  stock:                                                       
Conversion of convertible debt   -    -    -    -    -    -    254,061,743    254,062    4,014,795    -    4,268,857 
Conversion of secured/unsecured debt   -    -    -    -    -    -    40,277,378    40,277    817,675         857,952 
Cash   -    -    -    -    -    -    82,000,000    82,000    793,000    -    875,000 
Cash   -    -    -    -    100    -    -    -    100,000    -    100,000 
Services - third parties   -    -    -    -    -    -    46,521,157    46,522    1,153,322    -    1,199,844 
Services - third parties   -    -    -    -    90    -    -    -    90,000    -    90,000 
Services - third parties - future services   -    -    -    -    -    -    4,000,000    4,000    210,250    -    214,250 
Extension of debt maturity date   -    -    -    -    -    -    9,375,000    9,375    151,875    -    161,250 
Settlement of accounts payable   -    -    -    -    -    -    54,545,896    54,546    3,592,173    -    3,646,719 
Cancellation of shares   -    -    -    -    -    -    (3,500,000)   (3,500)   3,500    -    - 
Share based payments - related parties   -    -    51    -    -    -    -    -    -    -    - 
Dividends on series C preferred stock - related parties   -    -    -    -    -    -    -    -    -    (293)   (293)
Reclassification of derivative liability to additional paid in capital   -    -    -    -    -    -    -    -    640,826         640,826 
Net loss   -    -    -    -    -    -    -    -    -    (23,280,950)   (23,280,950)
                                                        
Balance - December 31, 2011   -   $-    51   $-    190   $-    605,930,613   $605,931   $31,579,538   $(45,156,681)  $(12,971,212)

 

See accompanying notes to consolidated financial statements

 

F-4
 

 

MusclePharm Corporation and Subsidiary

Consolidated Statements of Cash Flows

 

   Year Ended 
   December 31, 2011   December 31, 2010 
Cash Flows From Operating Activities:          
Net loss  $(23,280,950)  $(19,569,337)
Adjustments to reconcile net loss to net cash used in operating activities:          
Depreciation   171,587    18,567 
Bad debt   120,477    119,468 
Warrants issued for services - third parties   1,989,982    - 
Stock issued for services - third parties   1,289,844    4,554,615 
Stock issued for services - related parties   -    5,300,000 
Services paid with previously issued stock to related parties   -    1,039,500 
Stock issued to extend maturity date of debt   161,250    95,500 
Stock issued as settlement in connection with lawsuit   -    100,000 
Stock issued with unsecured debt offering-additional interest expense   -    30,500 
Share based payments   -    630,990 
Amortization of prepaid stock compensation   1,745,705    768,637 
Amortization of debt discount and debt issue costs   3,466,718    485,689 
Loss on settlement of accounts payable   2,123,129    433,400 
Loss on conversion of debt   1,739,329    - 
Derivative expense   4,777,654    93,638 
Change in fair value of derivative liabilities   (5,162,100)   149,306 
Changes in operating assets and liabilities:          
(Increase) decrease in:          
Accounts receivable   (2,262,808)   (434,753)
Prepaid sponsorship fees   (203,333)   - 
Inventory   -    4,245 
Deposits   -    32,116 
Other   7,877    (66,703)
Increase (decrease) in:          
Accounts payable and accrued liabilities   7,581,564    2,358,430 
Customer deposits   (67,686)   60,715 
Net Cash Used In Operating Activities   (5,801,761)   (3,795,477)
           
Cash Flows From Investing Activities:          
Purchase of property and equipment   (831,511)   (117,303)
Net Used In Investing Activities   (831,511)   (117,303)
           
Cash Flows From Financing Activities:          
Cash overdraft   -    (17,841)
Due to related party   -    (27,929)
Proceeds from issuance of debt   6,612,900    2,140,608 
Proceeds from issuance of debt - related party        358,077 
Repayment of debt   (75,285)   - 
Cash paid for debt issue costs   (263,283)   - 
Proceeds from issuance of preferred stock   100,000    - 
Proceeds from issuance of common stock and warrants-net of recapitalization payment   875,000    1,503,569 
Net Cash Provided By Financing Activities   7,249,332    3,956,484 
           
Net increase in cash   616,060    43,704 
           
Cash at beginning of year   43,704    - 
           
Cash at end of year  $659,764   $43,704 
           
Supplemental disclosures of cash flow information:          
Cash paid for interest  $28,806   $15,882 
           
Supplemental disclosure of non-cash investing and financing activities:          
           
Stock issued for future services - third parties  $214,250   $2,734,548 
Non cash increase in accounts payable related to future services to be paid for with common stock  $100,000   $- 
Debt discount recorded on convertible and unsecured debt accounted for as a derivative liability  $5,473,291   $380,000 
Conversion of convertible debt and accrued interest for common stock  $3,387,480   $1,033,500 
Stock issued to settle debt - third parties  $-   $1,191,064 
Stock issued to settle debt - related party  $-   $358,077 
Stock issued to settle accounts payable and due to factor  $1,440,779   $433,400 
Reclassification of derivative liability to additional paid in capital  $640,826   $- 
Conversion of preferred stock to common stock  $-   $83 
Stock issued to acquire equipment  $82,811   $- 
Auto acquired through financing  $26,236   $- 
Dividends on series C preferred stock - related parties  $293   $- 
Original issue discount  $-   $37,500 

 

See accompanying notes to consolidated financial statements

 

F-5
 

  

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Note 1 Nature of Operations and Summary of Significant Accounting Policies

 

Nature of Operations

 

MusclePharm Corporation (the “Company”, “We”, “Our” or “MP”), was organized as a limited liability company in the State of Colorado on April 22, 2008.  On February 18, 2010, the Company executed a reverse recapitalization with Tone in Twenty, Inc. and changed its name to MP (See Note 3).

 

The Company markets branded sports nutrition products.

 

Risks and Uncertainties

 

The Company operates in an industry that is subject to rapid change and intense competition. The Company's operations will be subject to significant risk and uncertainties including financial, operational, technological, regulatory and other risks, including the potential risk of business failure.

 

Use of Estimates

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period.

 

Making estimates requires management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation or set of circumstances that existed at the date of the financial statements, which management considered in formulating its estimate could change in the near term due to one or more future non-conforming events. Accordingly, the actual results could differ significantly from estimates.

 

Principles of Consolidation

 

All inter-company accounts and transactions have been eliminated in consolidation.

 

Cash and Cash Equivalents

 

The Company considers all highly liquid instruments purchased with an original maturity of three months or less and money market accounts to be cash equivalents.  At December 31, 2011 and 2010, the Company had no cash equivalents.

 

The Company minimizes its credit risk associated with cash by periodically evaluating the credit quality of its primary financial institution. The balance at times may exceed federally insured limits.  At December 31, 2011 there was one account that had a balance that exceeded the federally insured limit by approximately $378,000. In 2010, there were no balances that exceeded the federally insured limit.

 

Accounts Receivable and Allowance for Doubtful Accounts

 

Accounts receivable represent trade obligations from customers that are subject to normal trade collection terms. The Company periodically evaluates the collectability of its accounts receivable and considers the need to establish an allowance for doubtful accounts based upon historical collection experience and specific customer information. Accordingly, the actual amounts could vary from the recorded allowances.

 

The Company does not charge interest on past due receivables. Receivables are determined to be past due based on the payment terms of the original invoices.

 

F-6
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Accounts receivable at December 31, 2011 and 2010 were as follows:

 

Accounts receivable  $2,766,776   $542,863 
Less: allowance for doubtful accounts   (197,684)   (116,102)
Accounts receivable – net  $2,569,092   $426,761 

 

As of December 31, 2011 and 2010, the Company had the following concentrations of accounts receivable with customers:

 

Customer  2011   2010 
A   36%   24%
B   12%   2%
C   10%   -%
D   7%   40%
E   5%   11%

 

Property and Equipment

 

Property and equipment are stated at cost and depreciated to their estimated residual value over their estimated useful lives. When assets are retired or otherwise disposed of, the assets and related accumulated depreciation are relieved from the accounts and the resulting gains or losses are included in operating income in the statements of operations. Repairs and maintenance costs are expensed as incurred. Depreciation is provided using the straight-line method for all property and equipment.

 

Website Development Costs

 

Costs incurred in the planning stage of a website are expensed, while costs incurred in the development stage are capitalized and amortized over the estimated useful life of the asset.

 

Long-Lived Assets

 

The Company reviews long-lived assets for impairment whenever events or changes in circumstances, such as service discontinuance or technological obsolescence, indicate that the carrying amount of the long-lived asset may not be recoverable. When such events occur, the Company compares the carrying amount of the asset to the undiscounted expected future cash flows related to the asset. If the comparison indicates that impairment is present, the amount of impairment is calculated as the difference between the excess of the carrying amount over the fair value of the asset. If a readily determinable market price does not exist, fair value is estimated using discounted expected cash flows attributable to the asset.

 

Fair Value of Financial Instruments

 

The Company measures assets and liabilities at fair value based on an expected exit price as defined by the authoritative guidance on fair value measurements, which represents the amount that would be received on the sale of an asset or paid to transfer a liability, as the case may be, in an orderly transaction between market participants. As such, fair value may be based on assumptions that market participants would use in pricing an asset or liability. The authoritative guidance on fair value measurements establishes a consistent framework for measuring fair value on either a recurring or nonrecurring basis whereby inputs, used in valuation techniques, are assigned a hierarchical level.

 

The following are the hierarchical levels of inputs to measure fair value:

 

  · Level 1: Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets.

 

  · Level 2: Inputs reflect quoted prices for identical assets or liabilities in markets that are not active; quoted prices for similar assets or liabilities in active markets; inputs other than quoted prices that are observable for the assets or liabilities; or inputs that are derived principally from or corroborated by observable market data by correlation or other means.

 

· Level 3: Unobservable inputs reflecting the Company’s assumptions incorporated in valuation techniques used to determine fair value. These assumptions are required to be consistent with market participant assumptions that are reasonably available.

 

F-7
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

The following are the major categories of liabilities measured at fair value on a recurring basis as of December 31, 2011 and 2010, using quoted prices in active markets for identical liabilities (Level 1); significant other observable inputs (Level 2); and significant unobservable inputs (Level 3):

 

       2011   2010 
Derivative liabilities   Level 2   $7,061,238   $622,944 

 

The Company's financial instruments consisted primarily of accounts receivable, prepaids, accounts payable and accrued liabilities, derivative liabilities and debt. The carrying amounts of the Company's financial instruments generally approximated their fair values as of December 31, 2011 and 2010, respectively, due to the short-term nature of these instruments.

 

Revenue Recognition

 

The Company records revenue when all of the following have occurred; (1) persuasive evidence of an arrangement exists, (2) product has been shipped or delivered by the third party manufacturer, (3) the sales price to the customer is fixed or determinable, and (4) collectability is reasonably assured.

 

Depending on individual customer agreements, sales are recognized either upon shipment of products to customers or upon delivery.  For one of our largest customers, which represent 15% of total revenue, revenue is recognized upon delivery. For all other customers, revenue is recognized upon shipment of the product. The Company records sales allowances and discounts as a direct reduction of sales.  The Company recorded discounts of $359,182 and $152,664 for the years ended December 31, 2011 and 2010, respectively.

 

The Company grants volume incentive rebates to certain customers based on contractually agreed percentages ranging from 2.5% - 5.5% as a percentage of sales once a certain threshold has been met. The credits are recorded as a direct reduction to sales. Total volume incentive rebates granted for the years ended December 31, 2011 and 2010 were approximately $500,000 and $0, respectively.

 

The Company has an informal 7-day right of return for products. There were nominal returns in 2011 and 2010.

 

During the years ended December 31, 2011 and 2010, the Company had the following concentrations of revenues with customers:

 

Customer  2011   2010 
A   40%   42%
B   15%   9%
C   -%   12%

 

The Company does not manufacture or physically hold any inventory.  Inventory is held and distributed by the Company’s third party manufacturer.

 

Licensing Income and Royalty Revenue

 

On May 5, 2011, the Company granted an exclusive indefinite term license to a third party for $250,000. The licensee may market, manufacture, design and sell the Company’s existing apparel line. The licensee will pay the Company a 10% net royalty based on its net income at the end of each fiscal year. To date, no royalty revenue has been earned.

 

Cost of Sales

 

Cost of sales represents costs directly related to the production and third party manufacturing of the Company’s products.

 

F-8
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Shipping and Handling

 

Product sold is typically shipped directly to the customer from the manufacturer.  Any freight billed to customers is offset against shipping costs and included in cost of sales.

 

Freight billed to customers for the years ended December 31, 2011 and 2010 was $309,690 and $71,983, respectively.

 

Advertising

 

The Company expenses advertising costs when incurred.

 

Advertising for the years ended December 31, 2011 and 2010 are as follows:

 

2011   2010 
$9,241,741   $7,084,955 

 

Income Taxes

 

Through February 18, 2010, the Company was taxed as a pass-through entity (LLC) under the Internal Revenue Code and was not subject to federal and state income taxes; accordingly, no provision was made. The financial statements reflect the LLC’s transactions without adjustment, if any, required for income tax purposes for the period ended February 18, 2010. In computing the expected tax benefit, the Company reflected a net loss of $23,280,950 in the year ended December 31, 2011 and $19,169,454 for the period from February 18, 2010 to December 31, 2010.

 

In 2011, and the period from February 18, 2010 through December 31, 2010, income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases, operating loss and tax credit carry-forwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. Beginning with the adoption of FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes , (included in FASB ASC Subtopic 740-10, Income Taxes — Overall ), the Company recognizes the effect of income tax positions only if those positions are more likely than not to be sustained. Recognized income tax positions are measured at the largest amount that is greater than 50% likely to be realized. Changes in recognition or measurement are reflected in the period in which the change in judgment occurs.

 

The Company records interest and penalties related to unrecognized tax benefits in income tax expense. There were none for the years ended December 31, 2011 and 2010.

  

Beneficial Conversion Feature

 

For conventional convertible debt where the rate of conversion is below market value, the Company records a "beneficial conversion feature" ("BCF") and related debt discount.

 

When the Company records a BCF, the relative fair value of the BCF is recorded as a debt discount against the face amount of the respective debt instrument. The discount is amortized to interest expense over the life of the debt.

 

Derivative Liabilities

 

Fair value accounting requires bifurcation of embedded derivative instruments, such as ratchet provisions or conversion features in convertible debt or equity instruments, and measurement of their fair value. In determining the appropriate fair value, the Company uses the Black-Scholes option-pricing model. In assessing the convertible debt instruments, management determines if the convertible debt host instrument is conventional convertible debt and further if there is a beneficial conversion feature requiring measurement. If the instrument is not considered conventional convertible debt, the Company will continue its evaluation process of these instruments as derivative financial instruments.

 

Once derivative liabilities are determined, they are adjusted to reflect fair value at the end of each reporting period. Any increase or decrease in the fair value is recorded in results of operations as an adjustment to fair value of derivatives. In addition, the fair value of freestanding derivative instruments such as warrants, are also valued using the Black-Scholes option-pricing model.

 

F-9
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Debt Issue Costs and Debt Discount

 

The Company may pay debt issue costs, and record debt discounts in connection with raising funds through the issuance of convertible debt.  These costs are amortized to interest expense over the life of the debt. If a conversion of the underlying debt occurs, a proportionate share of the unamortized amounts is immediately expensed.

 

Original Issue Discount

 

For certain convertible debt issued, the Company provides the debt holder with an original issue discount.  The original issue discount is recorded to debt discount, reducing the face amount of the note and is amortized to interest expense over the life of the debt.

 

Share-based payments

 

The Company has incentive plans that reward employees with stock options, warrants, restricted stock and stock appreciation rights. The amount of compensation cost for these share-based awards is measured based on the fair value of the awards, as of the date that the share-based awards are issued and adjusted to the estimated number of awards that are expected to vest.

 

Fair value of stock options, warrants, and stock appreciation rights, is generally determined using a Black-Scholes option pricing model, which incorporates assumptions about expected volatility, risk free rate, dividend yield, and expected life. Compensation cost for share-based awards is recognized on a straight-line basis over the vesting period.

 

Net Earnings (Loss) per Share

 

Net earnings (loss) per share is computed by dividing net income (loss) less preferred dividends for the period by weighted average number of shares of common stock outstanding during each period.  Diluted earnings (loss) per share is computed by dividing net income (loss) less preferred dividends by the weighted average number of shares of common stock, common stock equivalents and potentially dilutive securities outstanding during the period.

 

Since the Company reflected a net loss in 2011 and 2010, respectively, the effect of considering any common stock equivalents, if exercisable, would have been anti-dilutive. A separate computation of diluted earnings (loss) per share is not presented.

 

The Company has the following common stock equivalents at December 31, 2011 and 2010:

 

   2011   2010 
Stock options (exercise price - $0.50/share)   1,617,500    2,767,500 
Warrants (exercise price $0.015- $1.50/share)   61,696,327    750,000 
Convertible preferred series C shares  (exercise price $0.01/share)   19,000    - 
Convertible debt (exercise price $0.002- $0.02/share)   448,592,711    11,197,139 
Total common stock equivalents   511,925,538    14,714,639 

 

In the above table, some of the outstanding convertible debt from 2011 and 2010 contains ratchet provisions that would cause variability in the exercise price at the balance sheet date.  As a result, common stock equivalents could change at each reporting period.

 

Reclassification

 

The Company has reclassified certain prior period amounts to conform to the current period presentation. These reclassifications had no effect on the financial position, results of operations or cash flows for the periods presented.

 

 

F-10
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

 

Recent Accounting Pronouncements

 

In May 2011, the FASB issued ASU No. 2011-04, which amended ASC Topic 820 to achieve common fair value measurements and disclosure requirements in U.S. GAAP and International Financial Reporting Standards (“IFRS”). The amendments in ASU No. 2011-05 result in common fair value measurement and disclosure requirements in U.S. GAAP and IFRSs. Consequently, the amendments change the wording used to describe many of the requirements in U.S. GAAP for measuring fair value and for disclosing information about fair value measurements. This amendment is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011. The Company does not anticipate this amendment will have a material impact on its financial statements.

 

Note 2 Going Concern

 

As reflected in the accompanying financial statements, the Company had a net loss of $23,280,950 and net cash used in operations of $5,801,761 for the year ended December 31, 2011; and a working capital deficit and stockholders’ deficit of $13,693,267 and $12,971,212, respectively, at December 31, 2011.These factors raise substantial doubt about the Company's ability to continue as a going concern.

 

The ability of the Company to continue its operations is dependent on Management's plans, which include the raising of capital through debt and/or equity markets with some additional funding from other traditional financing sources, including term notes, until such time that funds provided by operations are sufficient to fund working capital requirements.  The Company may need to incur liabilities with certain related parties to sustain the Company’s existence.

 

The Company will require additional funding to finance the growth of its current and expected future operations as well as to achieve its strategic objectives.  The Company believes its current available cash along with anticipated revenues may be insufficient to meet its cash needs for the near future.  There can be no assurance that financing will be available in amounts or terms acceptable to the Company, if at all.

 

In response to these problems, management has taken the following actions:

 

  · seeking additional third party debt and/or equity financing,
  · continue with the implementation of the business plan,
  · generate new sales from international customers; and
  · allocate sufficient resources to continue with advertising and marketing efforts

 

The accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business.  These financial statements do not include any adjustments relating to the recovery of the recorded assets or the classification of the liabilities that might be necessary should the Company be unable to continue as a going concern.

 

 Note 3 Reverse Recapitalization

 

On February 18, 2010, the Company merged with Tone in Twenty, Inc. (“TIT”), a then public shell corporation, and MP became the surviving corporation, in a transaction treated as a reverse recapitalization. TIT did not have any operations and majority-voting control was transferred to MP.

 

In the recapitalization, MP acquired 26,000,000 shares of common stock from TIT in exchange for all member units in MP.  Prior to the transaction, the Company paid approximately $25,000 to a former executive of TIT to acquire 366,662 of the 437,500 shares issued and outstanding, these shares were then immediately cancelled and retired.  The remaining 70,838 shares were held by the selling stockholders as a deemed issuance in the recapitalization. After the transaction, there were 26,070,838 shares issued and outstanding.  The transaction resulted in MP acquiring 99.7% control.

 

The transaction also requires a recapitalization of MP. Since MP acquired a controlling voting interest, it was deemed the accounting acquirer, while TIT was deemed the legal acquirer. The historical financial statements of the Company are those of MP and of the consolidated entities from the date of recapitalization and subsequent.

 

Since the transaction is considered a reverse recapitalization, the presentation of pro-forma financial information was not required.

 

F-11
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Note 4 Property and Equipment

 

Property and equipment consisted of the following at December 31, 2011 and 2010:

 

   2011   2010   Estimated Useful Life
Furniture, fixtures and gym equipment  $781,786   $55,305   3 years
Leasehold improvements   244,770    67,760   *
Auto   37,068    -   5 years
Displays   32,057    32,057   5 years
Website   11,462    11,462   3 years
 Total   1,107,143    166,584    
Less: Accumulated depreciation and amortization   (199,621)   (28,033)   
   $907,522   $138,551    

* The shorter of 5 years or the life of the lease.

 

Note 5 Debt

 

At December 31, 2011 and 2010, debt consists of the following:

 

   2011   2010 
         
Convertible debt - secured  $1,749,764   $605,000 
Less: debt discount   (1,395,707)   (331,261)
Convertible debt - net   354,057    273,739 
           
Auto loan - secured   26,236    - 
           
Secured debt   -    187,500 
           
Unsecured debt   2,380,315    78,249 
Less: debt discount   (1,171,626)   - 
Unsecured debt - net   1,208,689    78,249 
           
Total debt   1,588,982    539,488 
           
Less: current portion   (1,281,742)   (289,488)
           
Long term debt  $307,240   $250,000 

 

As of December 31, 2011 and 2010, total debt in default as a component of short-term debt was $505,600 and $427,500, respectively.

 

(A) Convertible Debt – Secured - Derivative Liabilities

 

During the years ended December 31, 2011 and 2010, the Company issued convertible notes totaling $4,679,253, (including non-cash convertible note and accrued interest of $26,353 related to a reclassification from unsecured debt), and $846,000, respectively. The Convertible notes consist of the following terms:

 

F-12
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

            Year ended     Year ended  
            December 31, 2011     December 31, 2010  
            Amount of     Amount of  
            Principal Raised     Principal Raised  
Interest Rate             0% - 18%       8%  
Default interest rate             0% - 25%       0% - 22%  
Maturity             June 30, 2011 to June 29, 2015       December 31, 2010 - December 1, 2013  
Conversion terms 1     Lesser of (1) a Fifty Percent (50%) discount to the two lowest closing bid prices of the five days  trading days immediately preceding the date of conversion or (ii) Two and One-Half Cents ($0.025) per share     $ 525,000     $  -  
Conversion terms 2     200% - The "market price" will be equal to the average of (i) the average of the closing price of Company's common stock during the 10 trading days immediately preceding the date hereof and (ii) the average of the 10 trading days immediately subsequent to the date hereof.     $  537,600     $  -  
Conversion terms 3     200% of Face.  Average of the trading price 10 trading days immidediately preceding the closing of the transaction     $  177,000     $  -  
Conversion terms 4     200% of Face.  Fixed conversion price of $0.02     $  105,000     $  -  
Conversion terms 5     300% of Face.  Fixed conversion price of $0.02     $  15,000     $  -  
Conversion terms 6     35% of the three lowest trading prices for previous 10 trading days     $  250,000     $  -  
Conversion terms 7     45% of the three lowest trading prices for previous 10 trading days     $  327,500     $  -  
Conversion terms 8     50% of average closing prices for 10 preceding trading days     $  76,353     $  -  
Conversion terms 9     50% of lowest trade price for the last 20 trading days     $  45,000     $  -  
Conversion terms 10     50% of the 3 lowest trades for previous 20 trading days     $  33,000     $  -  
Conversion terms 11     50% of the lowest closing price for previous 5 trading days     $  250,000     $  -  
Conversion terms 12     60% Multiplied by the average of the lowest 3 trading prices for common stock during the ten trading days prior to the conversion date     $  233,000     $  130,000  
Conversion terms 13     62% of lowest trade price for the last 7 trading days     $  40,000     $  -  
Conversion terms 14     65% of the lowest trade price in the 30 trading days previous to the conversion     $  335,000     $  250,000  
Conversion terms 15     65% of the three lowest trading price for previous 30 trading days     $  153,800     $  -  
Conversion terms 16     70% of lowest average trading price for 30 trading days     $  1,366,000     $  -  
Conversion terms 17     No fixed conversion option     $  35,000     $  -  
Conversion terms 18     35% multiplied by the average of the lowest three (3) Trading Prices (as defined below) for the Common Stock during the ten (10) Trading Day period ending on the latest complete Trading Day prior to the Conversion Date. "     $  75,000     $  -  
Conversion terms 19     Fixed conversion price of $0.03     $  100,000     $  -  
Conversion terms 20     150% of Face     $  -     $  5,000  
Conversion terms 21     200% of Face     $ -     $  426,000  
Conversion terms 22     300% of Face     $  -     $  35,000  
            $ 4,679,253     $  846,000  

  

The debt holders are entitled, at their option, to convert all or part of the principal and accrued interest into shares of the Company’s common stock at conversion prices and terms discussed above.  The Company classifies embedded conversion features in these notes as a derivative liability due to management’s assessment that the Company may not have sufficient authorized number of shares of common stock required to net-share settle or due to the existence of a ratchet due to an anti-dilution provision. See Note 6 regarding accounting for derivative liabilities.

 

During the year ended December 31, 2011, the Company converted debt and accrued interest, totaling $5,126,809 into 294,339,121 shares of common stock resulting in a loss on conversion of $1,739,329.

 

Convertible debt consisted of the following activity and terms:

 

During the year ended December 31, 2011, $585,000 of convertible notes matured without conversion. These notes became demand loans and were reclassified as unsecured debt. Derivative liabilities associated with these notes were eliminated given the expiration of the embedded conversion option.

 

        Interest Rate   Maturity 
Convertible Debt balance as of December 31, 2009  $897,500           
Borrowings during the year ended December 31, 2010   846,000    8%    March 3, 2010 - December 1, 2013 
Conversion  of debt into 9,908,906 shares of common stock with a valuation of $1,143,500 ( $0.045 - $0.667 /share)   (1,138,500)          
Balance as of December 31, 2010   605,000           
Borrowings during the year ended December 31, 2011   4,652,900    0% - 18%    January 30, 2011 - June 29, 2015 
Reclassifications from convertible notes to unsecured demand notes   (585,000)          
Conversion  of debt to into 254,061,743 shares of common stock with a valuation of $4,268,857 ($0.0032 - $0.101/share)   (2,923,136)          
Convertible Debt balance as of December 31, 2011  $1,749,764           

 

F-13
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

(B) Secured Debt

 

Secured debt consisted of the following activity and terms:

 

       Interest Rate   Maturity 
Secured Debt balance as of December 31, 2009  $-           
Borrowings during the year ended December 31, 2010   187,500    0%   May 18, 2010 - May 26, 2010 
Balance as of December 31, 2010   187,500           
Conversion  of debt to into 7,500,000 shares of common stock with a valuation of $437,500 ($0.058 - $0.059/share)   (187,500)          
Secured Debt balance as of December 31, 2011  $-           

 

(C) Unsecured Debt

 

Unsecured debt consisted of the following activity and terms:

 

       Interest Rate   Maturity 
Unsecured Debt balance as of December 31, 2009  $30,000           
Borrowings during the year ended December 31, 2010   1,177,499    0% - 10%   On Demand - September 29, 2011 
Conversion  of debt into 9,127,119 shares of common stock with a valuation of $1,439,141 ( $0.50/share)   (1,129,250)          
Unsecured Debt balance as of December 31, 2010   78,249           
Borrowings during the year ended December 31, 2011   1,960,000    8% - 15%   February 8, 2011 - June 21, 2014 
Reclassifications from convertible notes to unsecured demand notes   585,000           
Conversion of debt to into 32,777,378 shares of common stock with a valuation of $420,452 ($0.01 - $0.05/share)   (167,649)          
Repayments   (75,285)          
Unsecured Debt balance as of December 31, 2011  $2,380,315           

 

(D) Auto Loan

 

Auto loan account consisted of the following activity and terms:

 

       Interest Rate   Maturity 
Auto loan balance as of December 31, 2010   -           
Non-Cash fixed assets additions during the year ended December 31, 2011   32,568    6.99%   36 payments of $1,008 
Repayments   (6,332)          
Auto loan balance as of December 31, 2011  $26,236           

 

(E) Debt Issue Costs

 

During the years ended 2011 and 2010, the Company paid debt issue costs totaling $263,283 and $42,000, respectively.

 

The following is a summary of the Company’s debt issue costs:

 

   2011   2010 
Debt issue costs  $305,283   $42,000 
Accumulated amortization of debt issue costs   (237,095)   (7,596)
Debt issue costs – net  $68,188   $34,404 

 

During 2011 and 2010, the Company amortized $229,499 and $7,596.

 

(F)  Debt Discount

 

During the years ended 2011 and 2010, the Company recorded debt discounts totaling $5,473,291 and $380,000, respectively.

 

The debt discount recorded in 2011 and 2010 pertains to convertible debt that contains embedded conversion options that are required to bifurcated and reported at fair value (See Note 9).

 

The Company amortized $3,237,219 in 2011 and $48,739 in 2010 to interest expense.

 

   2011   2010 
Debt discount  $5,804,552   $380,000 
Amortization of debt discounts   (3,237,219)   (48,739)
Debt discount – net  $2,567,333   $331,261 

 

F-14
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Note 6 Derivative Liabilities

 

The Company identified conversion features embedded within convertible debt, warrants and series A, preferred stock issued in 2011 and 2010 (see Notes 5 and 9). The Company has determined that the features associated with the embedded conversion option should be accounted for at fair value as a derivative liability as the Company could not determine if a sufficient number of shares would be available to settle all transactions. Additionally, at one point during 2011, the Company had received conversion notices from investors for which sufficient authorized shares were not available.

 

As a result of the application of ASC No. 815, the fair value of the conversion feature is summarized as follow:

 

Derivative liability - December 31, 2009  $- 
Fair value at the commitment date for convertible instruments   473,638 
Fair value mark to market adjustment   149,306 
Derivative liability - December 31, 2010   622,944 
Fair value at the commitment date for convertible instruments   6,590,351 
Fair value at the commitment date for warrants issued   5,650,576 
Fair value at the commitment date for Series A, Preferred Stock issued   293 
Fair value mark to market adjustment for convertible instruments   (2,293,164)
Fair value mark to market adjustment for warrants   (2,868,818)
Fair value mark to market adjustment for Series A, Preferred Stock issued   (118)
Reclassification to additional paid in capital for financial instruments that ceased to be a derivative liability   (640,826)
Derivative liability - December 31, 2011  $7,061,238 

 

The Company recorded the debt discount to the extent of the gross proceeds raised, and expensed immediately the remaining value of the derivative as it exceeded the gross proceeds of the note.  The Company recorded a derivative expense of $4,777,654 and $93,638 for 2011 and 2010 respectively.

 

The fair value at the commitment and re-measurement dates for the Company’s derivative liabilities were based upon the following management assumptions as of December 31, 2011:

 

   Commitment Date   Re-measurement Date 
Expected dividends   0%   0%
Expected volatility   150% -226  %    150% -226  % 
Expected term:   0.02 – 5 years    0.02 – 5 years 
Risk free interest rate   0.06% - 2.76 %    0.09% - 0.31 % 

 

The fair value at the commitment and re-measurement dates for the Company’s derivative liabilities were based upon the following management assumptions as of December 31, 2010:

 

   Commitment Date   Re-measurement Date 
Expected dividends   0%   0%
Expected volatility   150%   150%
Expected term:   0.75 – 3 years    0.37 – 2.92 years 
Risk free interest rate   0.18% - 2.76 %    0.19%

 

F-15
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Note 7 Income Taxes

 

Income taxes are provided for the tax effects of transactions reported in the 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.

 

At December 31, 2011, the Company has a net operating loss carry-forward of approximately $16,355,000 available to offset future taxable income expiring through 2031. Utilization of future net operating losses may be limited due to potential ownership changes under Section 382 of the Internal Revenue Code.

 

The valuation allowance at December 31, 2010 was $ 2,495,000. The net change in valuation allowance during the year ended December 31, 2011 was an increase of approximately $6,075,000. 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 determined that enough uncertainty exists relative to the realization of the deferred income tax asset balances to warrant the application of a full valuation allowance as of December 31, 2011.

 

The effects of temporary differences that gave rise to significant portions of deferred tax assets at December 31, 2011 and 2010 are approximately as follows:

 

   December 31, 2011   December 31, 2010 
         
Net operating loss carry forward  $6,061,000   $1,986,000 
Amortization of debt discount and debt issue costs   1,465,000    465,000 
Stock options and warrants   971,000    0 
Bad debt   73,000    44,000 
Valuation allowance   (8,570,000)   (2,495,000)
Net deferred tax asset  $-   $- 

 

There was no income tax expense for the year ended December 31, 2011 and 2010 due to the Company’s net losses.

 

The Company’s tax expense differs from the “expected” tax expense for the years ended December 31, 2011 and 2010, (computed by applying the Federal Corporate tax rate of 34% to loss before taxes and 4.63% for Colorado State Corporate Taxes, the blended rate used was 37.1%), are approximately as follows:

 

   December 31, 2011   December 31, 2010 
Federal tax benefit at statutory rate  $(7,916,000)  $(6,216,000)
State tax benefit – net of federal tax effect   (501,000)   (888,000)
Derivative expense   1,625,000    35,000 
Change in fair value of derivative liability   (1,755,000)   55,000 
Loss on settlement of accounts payable   1,313,000    161,000 
Non-deductible stock compensation   1,091,000    4,354,000 
Other non-deductible expenses   68,000    4,000 
Change in valuation allowance   6,075,000    2,495,000 
Income tax benefit  $-   $- 

 

F-16
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

Note 8 Commitments, Contingencies and other matters

 

(A) Operating Lease

 

In August 2010, the Company leased office space under a non-cancelable operating lease, expiring in December 2015.

 

Future minimum annual rental payments are approximately as follows:

 

Year Ended December 31,

 

2012  $86,000 
2013   92,000 
2014   98,000 
2015   105,000 
Total minimum lease payments  $381,000 

 

Rent expense for the years ended December 31, 2011 and 2010 was $154,155 and $138,357, respectively.

 

(B) Factoring Agreement

 

In April 2010, the Company entered into a factoring agreement and sold its accounts receivable.  During 2010, the Company was subject legal proceedings with the factor, as a result of the Company’s customers not remitting funds directly to the factor. At December 31, 2010, the Company no longer factored its accounts receivable.

 

 A settlement, of $96,783, was reached. During 2010, the Company repaid $25,000, leaving a balance of $71,783 due to factor.  In 2011, the Company paid $10,000.

 

On February 28, 2011, the remaining $65,930, inclusive of fees and interest, was settled with the issuance of 2,187,666 shares of common stock, having a fair value of $131,206 ($0.06/share), based upon the quoted closing trading price. The Company recorded a loss on settlement of accounts payable $65,330.

 

(C) Legal Matters

 

From time to time, the Company may become involved in various lawsuits and legal proceedings, which arise in the ordinary course of business. However, litigation is subject to inherent uncertainties, and an adverse result in these or other matters may arise that may harm its business. The Company is party to the following legal matters as of December 31, 2011:

 

·Plaintiff alleges the Company use of Creatine Nitrate in product infringed on a patent held by the Plaintiff. The Company believes the Plaintiffs case is without merit.

 

·Plaintiff alleges the Company’s use of the tagline "Train like an unchained beast" infringes on their mark "Beast" for dietary supplements. Plaintiff's primary goal is not damages, but rather that the Company cease using the tagline. Settlement discussions are ongoing in this case and the Company intends to defend its position.

 

·Plaintiff has filed notices of intent to commence litigation on over 200 sports nutrition and dietary supplement companies in the US and Canada, including the Company. Plaintiff alleges violations of California's Proposition 65. The Company considers this case without merit and merely an attempt by a commercial plaintiff to pressure settlements. Plaintiff conveyed a settlement offer in the amount of $121,500 to which the Company has not yet responded. The Company has recorded an accrual in the amount of $121,500 as of December 31, 2011.

 

·Beginning in October 2009, the Company engaged in various business dealings regarding the manufacturing, sale and distribution of products with Fit Foods Manufacturing, Ltd. and Fit Foods Distribution, Inc. Jointly, "Fit Foods"). MusclePharm and Fit Foods subsequently became involved in a business dispute regarding their respective obligations and filed claims against each other in District Court. The Parties settled their dispute on December 22, 2010. The Company issued 13,987,393 shares of common stock having a fair value of $676,980 ($0.048/share), based upon the quoted closing trading price which settled outstanding accounts payable of $333,666, resulting in a loss on settlement of $343,314 All settlement payments have been made and the case was dismissed on July 1, 2011.

 

F-17
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

(D) Payroll Taxes

 

As of December 31, 2011 and 2010, accounts payable and accrued expenses included approximately $168,000 and $367,860, respectively, pertaining to accrued payroll taxes. The taxes represent employee withholdings that have yet to be remitted to the taxing agencies.

 

Note 9 Stockholders’ Deficit

 

The Company has three separate series of authorized preferred stock:

 

(A)Series A, Convertible Preferred Stock

 

During 2010, the Company issued 16,666,600 shares of common stock in connection with the conversion of 83,333 shares of Series A, convertible preferred stock. There was no gain or loss on conversion as the transaction was accounted for at par value in connection with the reverse recapitalization in 2010. (See Note 3)

 

This class of stock has the following provisions:

 

Non-voting,
No rights to dividends,
No liquidation value,
Convertible into 200 shares of common stock

 

(B) Series B, Preferred Stock (Related Parties)

 

In August 2011, the Company issued an aggregate 51 shares of Series B, preferred stock to 2 of its officers and directors. The Company accounted for the share issuance at par value since there was no future economic value that could be associated with the issuance.

 

This class of stock has the following provisions:

 

Voting rights entitling the holders to an aggregate 51% voting control,
Initially no rights to dividends,
Stated value of $0.001 per share,
Liquidation rights entitle the receipt of net assets on a pro-rata basis; and
Non-convertible

 

(C) Series C, Convertible Preferred Stock

 

In October 2011, the Company issued 190 shares of Series C, preferred stock, having a fair value of $190,000. Of the total shares issued, 100 shares were issued for $100,000 ($1,000 /share). The remaining 90 shares were issued for services rendered having a fair value of $90,000 ($1,000 /share), based upon the stated value per share.

 

This class of stock has the following provisions:

 

Stated Value - $1,000 per share,
Non-voting,
Liquidation rights entitle an amount equal to the stated value, plus any accrued and unpaid dividends
As long as any Series C, convertible preferred stock is outstanding, the Company is prohibited from executing various corporate actions with the majority consent of the Series C, convertible preferred stockholders authorization; and
Convertible at the higher of (a) $0.01 or (b) such price that is a 50% discount to market using the average of the low 2 closing bid prices, 5 days preceding conversion

 

Due to the existence of an option to convert at a variable amount, the Company has applied ASC No. 815, and treated this series of preferred stock as a derivative liability due to the potential for settlement in a variable quantity of shares. Additionally, the Company computed the fair value of the derivative liability at the commitment date and remeasurement date, which was $293 and $175, respectively, using the black-scholes assumptions below. This transaction is analogous to a dividend with a direct charge to retained earnings.

 

F-18
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

(D) Common Stock

 

In 2011, the Company issued the following common stock:

 

Transaction Type  Quantity   Valuation   Range of Value per Share 
Conversion of convertible debt   254,061,743   $4,268,857   $0.003–0.10 
Conversion of unsecured/secured debt   40,277,378   $857,952   $0.05–0.06 
Settlement of accounts payable and accrued expenses (1)   54,545,896   $3,646,719   $0.03–0.12 
Extension of debt maturity date   9,375,000   $161,250   $0.017–0.02 
Services – rendered   46,521,157   $1,199,844   $0.00–1.15 
Cash and warrants   82,000,000   $875,000   $0.03 
Services – prepaid stock compensation (2)   4,000,000   $214,250   $0.05–.08 
Cancelled shares  (3)   (3,500,000)  $-   $0.03 
Total   487,281,174   $11,223,872   $0.00–1.15 

 

The fair value of all stock issuances above is based upon the quoted closing trading price on the date of issuance, except for stock issued for cash and warrants, which was based upon the cash received. Stock issued in the conversion of preferred stock was recorded at par value.

 

The following is a more detailed description of some of the Company’s stock issuances from the table above:

 

(1) Settlement of Accounts Payable and Accrued Expenses and Loss on Settlement

 

The Company settled $1,523,590 in accounts payable and recorded a loss on settlement of $2,123,129.

 

Loss on settlement of accounts payable and accrued expenses  $2,123,129 
Loss on settlement of debt (Note 5)   1,739,329 
Total loss on settlement  $3,862,458 

 

(2) Prepaid Stock Compensation

 

The following represents the allocation of prepaid stock compensation as of December 31, 2011 and 2010:

 

Prepaid stock compensation – December 31, 2009  $- 
Prepaid stock compensation additions during the year ended December 31, 2010   2,734,548 
Amortization of prepaid stock compensation   (768,637)
Prepaid stock compensation – December 31, 2010   1,965,911 
Prepaid stock compensation additions during the year ended December 31, 2011   214,250 
Non cash increase in accounts payable related to future services to be paid for with common stock   100,000 
Amortization of prepaid stock compensation   (1,745,705)
Prepaid stock compensation – December 31, 2011  $534,456 

 

The agreements commenced during the periods February – July 2011 and terminate August 2011 through July 2012.

 

The following represents the allocation of prepaid stock compensation at December 31, 2011:

 

Prepaid expense that will be amortized in 2012  $534,456 

 

F-19
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

(3) Cancelled Shares

 

The Company cancelled 3,500,000 shares during the year ended December 31, 2011, valued at par ($0.001). The Company has disputed the issuance of these shares due to non-performance by a consultant. These shares were originally issued in 2010 as a component of stock issued for services rendered.

 

In 2010, the Company issued the following common stock:

 

Transaction Type  Quantity   Valuation   Range of Value per Share 
Reverse recapitalization   26,070,838   $-    - 
Conversion of preferred stock   16,666,600   $16,667   $0.001 
Conversion of convertible debt   7,708,906   $1,033,500   $0.05–0.67 
Settlement of accounts payable (1)   9,014,286   $433,400   $0.05–0.42 
Settlement of notes payable (2)   4,165,571   $1,191,064   $0.05–0.55 
Settlement of notes payable - officer   7,161,548   $358,077   $0.05 
Cash and warrants – net of payment in recapitalization of ($25,107)   4,167,767   $1,503,569   $0.27-0.50 
Services – rendered   22,457,214   $4,554,615   $0.05–1.16 
Services – rendered – officers (bonus)   10,000,000   $5,300,000   $0.53 
Services – prepaid stock compensation (5)   10,545,200   $2,734,548   $0.06–1.16 
Contract settlement (3)   511,509   $100,000   $0.20 
Extension of debt maturity date (4)   130,000   $95,500   $0.61–1.15 
Secured debt offering   50,000   $30,500   $0.61 
Total   118,649,439   $17,376,547   $0.001–1.16 

 

The fair value of all stock issuances above is based upon the quoted closing trading price on the date of issuance, except for stock issued for cash and warrants, which was based upon the cash received. Stock issued in the conversion of preferred stock was recorded at par value.

 

The following is a more detailed description of some of the Company’s stock issuances from the table above:

 

(1) Settlement of Accounts Payable and Loss on Settlement

 

Of the total shares issued to settle accounts payable, the Company issued 8,928,571 shares of common stock having a fair value of $400,000 ($0.045/share), based upon the quoted closing trading price.  The Company settled $375,000 in accounts payable, paid a fee of $25,000, and recorded a loss on settlement of $112,500.

 

The Company also paid cash to settle accounts payable of $84,715 and recorded a gain on settlement, as a result, the Company has recorded a total net loss on settlement of accounts payable of $27,785.

 

(2) Settlement of Notes payable

 

In connection with the stock issued to settle notes payable, the Company issued 1,965,571 shares of common stock having a fair value of $1,081,064 ($0.55/share), based upon the quoted closing trading price.  The Company settled $678,325 in notes payable and recorded a loss on settlement of $402,739.

 

(3) Contract Settlement

 

In connection with litigation (See Note 8), the Company issued stock that has been accounted for as a settlement expense and a component of other expense.

 

(4) Extension of Debt Maturity

 

The Company issued stock to extend the maturity date of certain notes and recorded additional interest expense.

 

F-20
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

(5) Prepaid Stock Compensation

 

The agreements commenced during the periods March – December 2010 and terminate during the periods March 2011 - November 2012.

 

Prepaid stock compensation is included as a component of prepaid and other current and long term assets.

 

(E) Stock Options

 

On February 1, 2010, the Company's board of directors and shareholders approved the 2010 Stock Incentive Plan ("2010 Plan"). The 2010 Plan allows the Company to grant incentive stock options, non-qualified stock options, restricted stock awards, restricted stock units and stock appreciation rights to key employees and directors of the Company or its subsidiaries, consultants, advisors and service providers. Any stock option granted in the form of an incentive stock option will be intended to comply with the requirements of Section 422 of the Internal Revenue Code of 1986, as amended. Only stock options granted to employees qualify for incentive stock option treatment. No incentive stock option shall be granted after February 1, 2020, which is 10 years from the date the 2010 Plan was initially adopted. A stock option may be exercised in whole or in installments, which may be cumulative. Shares of common stock purchased upon the exercise of a stock option must be paid for in full at the time of the exercise in cash or such other consideration determined by the compensation committee. Payment may include tendering shares of common stock or surrendering of a stock award, or a combination of methods.

 

The 2010 Plan will be administered by the compensation committee. The compensation committee has full and exclusive power within the limitations set forth in the 2010 Plan to make all decisions and determinations regarding the selection of participants and the granting of awards; establishing the terms and conditions relating to each award; adopting rules, regulations and guidelines; and interpreting the 2010 Plan. The Compensation Committee will determine the appropriate mix of stock options and stock awards to be granted to best achieve the objectives of the Plan. The 2010 Plan may be amended by the Board or the compensation committee, without the approval of stockholders, but no such amendments may increase the number of shares issuable under the 2010 Plan or adversely affect any outstanding awards without the consent of the holders thereof. The total number of shares that may be issued shall not exceed 5,000,000, subject to adjustment in the event of certain recapitalizations, reorganizations and similar transactions.

 

On April 2, 2010, the Company issued 2,767,500 stock options, having a fair value of $630,990, which was expensed immediately since all stock options vested immediately.  These options expire on April 2, 2015.

 

The Company applied fair value accounting for all share based payment awards. The fair value of each option granted is estimated on the date of grant using the Black-Scholes option-pricing model. The Black-Scholes assumptions used in the year ended December 31, 2010 is as follows:

 

Exercise price  $0.50 
Expected dividends   0%
Expected volatility   74.8%
Risk fee interest rate   1.4%
Expected life of option   2.5 years 
Expected forfeitures   0%

 

F-21
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

The following is a summary of the Company’s stock option activity:

 

           Weighted     
           Average     
           Remaining   Aggregate 
       Weighted Average   Contractual   Intrinsic 
   Options   Exercise Price   Life   Value 
Balance – December 31, 2009   -    -    -      
Granted   2,767,500    0.50    4.25 years      
Exercised   -    -    -      
Forfeited/Cancelled   -    -    -      
Balance – December 31, 2010   2,767,500   $0.50    4.25 years    - 
Granted   -   $            
Exercised   -               
Forfeited/Cancelled   (1,150,000)  $0.50           
Balance – December 31, 2011 – outstanding   1,617,500   $0.50    3.25 years   $        - 
Balance – December 31, 2011 – exercisable   1,617,500   $0.50    3.25 years   $        - 
                     
Grant date fair value of options granted – 2010       $630,990           
Weighted average grant date fair value – 2010       $0.50           
                     
Outstanding options held by related parties – 2011   2,000,000                
Exercisable options held by related parties – 2010   2,000,000                
Outstanding options held by related parties – 2011   1,000,000                
Exercisable options held by related parties – 2011   1,000,000                

 

(F) Stock Warrants

 

During 2010, the Company issued 750,000 five-year warrants, with a weighted average exercise price of $0.021/share.

 

All warrants issued during 2011 were accounted for as derivative liabilities. See Note 6.

 

During 2011, the Company entered into convertible and unsecured note agreements. As part of these agreements, the Company issued warrants to purchase 162,388,233 shares of common stock. Each warrant vests six month after issuance and expire July 14, 2013 – June 28, 2016, with exercise prices ranging from $0.015 - $0.06.

 

During 2011, the Company issued 120,200,000 warrants for services performed. The warrants have a vesting range of immediate to six months after issuance and expire February 28, 2014 – April 15, 2016, with exercise prices ranging from $0.002 - $0.1. The value of the warrants, $1,989,982, calculated using the below black-scholes assumptions, was expensed as compensation with the offset being recorded to derivative liabilities, since the Company applied the provisions of ASC No. 815, pertaining to the potential settlement in a variable amount of shares.

 

F-22
 

 

MusclePharm Corporation and Subsidiary

Consolidated Notes to Financial Statements

December 31, 2011 and 2010

 

A summary of warrant activity for the Company for the year ended December 31, 2010 and for the year ended December 31, 2011 is as follows:

 

   Number of     
   Warrants   Weighted Average Exercise Price 
Balance at December 31, 2009   -    - 
Granted   750,000   $1.5 
Exercised   -   $- 
Forfeited   -   $- 
Balance as December 31, 2010   750,000   $1.50 
Granted   282,588,233   $.02 
Exercised   -   $- 
Forfeited   -   $- 
Balance as December 31, 2011   283,338,233   $.02 

 

Warrants Outstanding  Warrants Exercisable     
       Weighted Average Remaining   Weighted Average   Numbers   Weighted Average     
Range of exercise price  Number Outstanding   Contractual Life (in years)   Exercise Price   Exercisable   Exercise Price   Intrinsic Value 
$0.02 - $1.50   283,338,233    2.85   $ $0.021   61,696,327   $0.042   $875,000 

   

Note 10 Subsequent Events

 

(A)Common Stock

 

On March 26, 2012, the Company increase the Company’s authorized common stock from 1,000,000,000 shares to 2,500,000,000 shares.

 

During the 1st quarter of 2012, the Company issued 20,000,000 shares of common stock to an officer, having a fair value of $280,000 ($0.014/share), based upon the quoted closing trading price.

 

(B)Warrants

 

During the 1st quarter of 2012, the Company issued 32,000,000 shares of common stock for $285,760 ($0.00893/share) in connection with the exercise of warrants.

 

(C) Debt, Debt Conversion and Warrants

 

Notes

 

During the 1st quarter of 2012, the Company executed notes payable and received net proceeds of $3,061,000.  The notes are unsecured, bear interest at 15% and mature 18 months from issuance. In connection with this debt issuance, the Company granted 241,125,000, 2.5 year warrants, with exercise prices ranging from $0.012/share - $0.015/share, and vest 6 months from grant.

 

Convertible Notes

 

During the 1st quarter of 2012, the Company executed convertible notes for $519,950 resulting in net cash proceeds of $489,950, ($30,000 paid as debt issue costs).  The notes mature between 6 months – 1 year.  The notes bear interest ranging from 8% - 10%, with default interest rates ranging from 20% - 24%. 

 

These notes may be convertible as follows, depending upon the terms of each issuance:

 

35% of the average, 3 lowest trading days, prior to the 10 days before conversion,
62% of the lowest trading price during the 7 days before conversion; and
65% of the lowest trading price during the 30 days before conversion

 

Debt Conversions

 

During the 1st quarter of 2012, the Company settled $2,443,214 of secured convertible debt, unsecured debt and accrued interest with the payment of $2,895,576 and the issuance of 267,308,200 shares of common stock.  In addition, all related 58,971,327 warrants were cancelled.  As a result of the debt conversion and cancellation of warrants, all associated derivative liabilities underlying these instruments cease to exist.

 

During the 1st quarter of 2012, the Company repurchased 14,542,939 shares of common stock from an investor for $230,400 ($0.0158/share).  The Company has paid $100,000, the balance will be paid in the 2nd quarter of 2012. In connection with the repurchase, the Company has accounted for this transaction in accordance with ASC 505-30, “treasury stock”.

 

F-23