Blueprint
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the Registrant
☒ Filed by a Party other than the Registrant
☐
Check the appropriate box:
☐
|
|
Preliminary Proxy Statement
|
☐
|
|
Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
☒
|
|
Definitive Proxy Statement
|
☐
|
|
Definitive Additional Materials
|
☐
|
|
Soliciting Material Pursuant to Section 240.14a-12
|
MusclePharm Corporation
(Exact name of registrant as specified in its charter)
Payment of Filing Fee (Check the appropriate box):
☒
|
|
No fee required.
|
|
|
☐
|
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
|
|
|
|
|
(1)
|
|
Title of each class of securities to which transaction
applies:
|
|
|
(2)
|
|
Aggregate number of securities to which transaction
applies:
|
|
|
(3)
|
|
Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was
determined):
|
|
|
(4)
|
|
Proposed maximum aggregate value of transaction:
|
|
|
(5)
|
|
Total fee paid:
|
|
|
☐
|
|
Fee paid previously with preliminary materials:
|
|
|
☐
|
|
Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
|
|
|
|
|
|
(1)
|
|
Amount Previously Paid:
|
|
|
(2)
|
|
Form, Schedule or Registration Statement No.:
|
|
|
(3)
|
|
Filing Party:
|
|
|
(4)
|
|
Date Filed:
|
October 26, 2018
Dear MusclePharm Stockholders:
I am pleased to report that the efforts and strong contributions
from my team have
aided
MusclePharm in
making significant progress toward sustainable and profitable
growth.
With the previously
disclosed restructuring behind us, 2017 ended with the first
sequential quarterly top-line revenue growth since early 2016. Our
newly crafted strategy focused the Company in four key
areas:
●
Diversify our customer base.
●
Build out a world-class consumer-based marketing
capability.
●
Invest in new product development.
●
Manage our costs to ensure profitable revenue growth.
In 2017, we leaned heavily into our expectation that our customers want
to be able to easily find and purchase our products online. As
such, we partnered with Amazon to optimize the MusclePharm
experience on that platform, resulting in a 247% year-over-year increase in associated
revenue growth. We made a strategic decision to focus on the Food,
Drug, Mass (“FDM”) segment and fill our retail sales
leadership role. Under this FDM leadership, we have gained a deep
understanding of the FDM landscape, which yielded a redesigned FDM
product portfolio that is being met with strong customer feedback. Finally,
we increased our
international efforts and were able to shift our
international portfolio from 35%in 2016 up to 40% in 2017.
We believe that it is our responsibility to be deeply
in-tune with the needs of
our customer base. We believe that listening to our customers is
the best strategy to succeed. As part of our focus on our
customers, in the fall of 2017, we relocated our corporate
headquarters from Denver, Colorado to
Burbank, California
in order to be in closer proximity to our core consumer base and key
industry influencers. We believe being in such close
proximity is an advantage in our highly competitive
industry.
Investment in product development is the next pillar that we
believe will be essential to MusclePharm’s future success. We
take pride in developing delicious, effective, and exciting
supplement products,
and we have renewed our efforts to do so. In the second quarter of
2017, we reintroduced our MP Natural product
line. This line
meets a growing trend of non-GMO performance supplements and
opens a new distribution opportunity with natural retailers, as
well as an
opportunity to further penetrate FDM retailers. In
the third quarter of 2017,
we captured an additional portion of the growing pre-workout market
with Wreckage Pre-Workout, which includes 300 milligrams of
caffeine and new-to-the-market ingredient, Vaso6.
We transitioned Combat
Crunch, the Bodybuilding.com three-time Protein Bar of the Year
award winner, back to its original recipe late in the fourth quarter of
2017.
The MusclePharm team spent considerable time in 2017 evaluating and
diversifying our portfolio of products with a goal that our go-forward product
line contributes to both top-line and bottom-line growth. At the
same time, we have partnered with our supply chain vendors
to realize cost
savings and negotiate terms that are mutually
beneficial.
We continue to execute our growth strategy and focus on our core
operations. We expect revenue to grow as we heighten the focus on
our core MusclePharm products and develop new exciting
products. We have a
thoughtful marketing strategy rooted in consumer insights and we
are working to bring additional product innovation to the market.
We have improved manufacturing and distribution
infrastructure in a
way that we believe
supports expense management.
|
Sincerely
yours,
|
|
|
|
|
|
/s/
Ryan Drexler
|
|
|
Ryan
Drexler
|
|
|
Chief Executive Officer and President
|
|
Burbank, California
October 26, 2018
Important
notice regarding the Internet availability of proxy materials for
the stockholders meeting to be held on December 7, 2018.
Stockholders may access, view and download the 2018 Proxy Statement
and the 2017 Annual Report on Form 10-K at www.musclepharm.com.
MusclePharm Corporation
4400 Vanowen St.
Burbank, CA 91505
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
December 7, 2018
The Annual Meeting of the Stockholders of MusclePharm Corporation
(the “Company”) will be held on December 7, 2018 at
11:00 a.m. Pacific Time, at 4400 Vanowen St., Burbank, CA 91505,
for the following purposes:
|
●
|
|
To elect four (4) members of the Board of Directors to hold
office until the next annual meeting or until their successors are
duly elected and qualified;
|
|
●
|
|
To ratify the appointment of Plante & Moran, PLLC as the
Independent Registered Public Accounting Firm of the Company for
our year ending December 31, 2018;
|
|
●
|
|
To hold an advisory vote on executive compensation;
and
|
|
●
|
|
To transact such other business as may properly come before the
meeting or any adjournment or postponement thereof.
|
The Board of Directors recommends that you vote FOR all of the
proposed agenda items disclosed herein.
These items of business are more fully described in the proxy
statement accompanying this notice. The Board of Directors has
fixed the close of business on October 16, 2018
as the record date for the determination of stockholders entitled
to receive notice of, and to vote at, the Annual Meeting of
Stockholders, or at any adjournments of the Annual Meeting of
Stockholders.
In order to ensure your representation at the Annual Meeting of
Stockholders, you are requested to submit your proxy by mail. If
you attend the Annual Meeting of Stockholders and file with the
Corporate Secretary of the Company an instrument revoking your
proxy or a duly executed proxy bearing a later date, your proxy
will not be used.
All stockholders are cordially invited to attend the Annual Meeting
of Stockholders.
A Notice of Internet Availability of Proxy Materials (the
“Notice”) containing instructions on how to access our
proxy materials, including this Proxy Statement and our 2017 Annual
Report on Form 10-K, is being mailed to stockholders on
or about October 26, 2018. The Notice also provides instructions on
how to vote over the Internet, by phone or by mail. If you receive
a Notice by mail, you will not receive printed and mailed proxy
materials unless you specifically request them.
|
By Order of the Board of Directors
MusclePharm Corporation
|
|
|
|
|
|
/s/ Ryan Drexler
|
|
|
Ryan Drexler
|
|
|
Chairman of the Board of Directors
|
|
Burbank, CA
October 26, 2018
Table of Contents
PROXY
STATEMENT
|
|
1
|
EXECUTIVE OFFICERS AND DIRECTORS
|
|
3
|
EXECUTIVE
COMPENSATION
|
|
11
|
ELEMENTS
OF EXECUTIVE COMPENSATION
|
|
12
|
COMPENSATION
OF EXECUTIVE OFFICERS
|
|
14
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
|
|
17
|
EQUITY
COMPENSATION PLAN INFORMATION
|
|
18
|
AUDIT
COMMITTEE REPORT
|
|
18
|
RELATED
PARTY TRANSACTIONS
|
|
19
|
PROPOSAL
1 ELECTION OF DIRECTORS
|
|
22
|
PROPOSAL
2 RATIFICATION OF APPOINTMENT OF EXTERNAL AUDITORS
|
|
23
|
PROPOSAL
3 ADVISORY VOTE ON EXECUTIVE COMPENSATION
|
|
24
|
HOUSEHOLDING
OF PROXY MATERIALS
|
|
24
|
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
|
26
|
OTHER
MATTERS
|
|
26
|
MusclePharm Corporation
4400 Vanowen St.,
Burbank, CA 91505
PROXY STATEMENT
FOR THE ANNUAL MEETING OF STOCKHOLDERS
December 7, 2018
INFORMATION CONCERNING SOLICITATION AND VOTING
General
This proxy statement is furnished in connection with the
solicitation of proxies for use prior to or at the Annual Meeting
of Stockholders (the “Annual Meeting”) of MusclePharm
Corporation (together with its subsidiaries, herein referred to as
the “Company”), a Nevada corporation, to be held at
11:00 a.m. Pacific Time on December 7, 2018 and at any adjournments
or postponements thereof for the following purposes:
|
●
|
|
To elect four (4) members of the Board of Directors to hold
office until the next annual meeting or until their successors are
duly elected and qualified;
|
|
●
|
|
To ratify the appointment of Plante & Moran, PLLC as the
Independent Registered Public Accounting Firm of the Company
for the year ending December
31, 2018;
|
|
●
|
|
To approve, on an advisory basis, the compensation of the
Company’s named executive officers; and
|
|
|
|
|
|
●
|
|
To transact such other business as may properly come before the
meeting or any adjournment or postponement thereof.
|
We made this proxy statement and accompanying form of proxy
available to stockholders beginning on October
26,
2018.
Important Notice Regarding the Availability of Proxy Materials for
the Annual Meeting to be Held on December 7, 2018:
This proxy statement, form of proxy and the Company’s 2017
Annual Report on Form 10-K are available electronically at our
website at www.musclepharmcorp.com.
Solicitation
This solicitation is made on behalf of our Board of Directors. The
Company will bear the costs of preparing, mailing, and other costs
of the proxy solicitation made by our Board of Directors. Certain
of our officers and employees may solicit the submission of proxies
authorizing the voting of shares in accordance with the Board of
Directors’ recommendations. Such solicitations may be made by
telephone, facsimile transmission or personal solicitation. No
additional compensation will be paid to such officers, directors or
regular employees for such services. We will reimburse banks,
brokerage firms and other custodians, nominees and fiduciaries for
reasonable out-of-pocket expenses incurred by them in sending proxy
material to stockholders.
Voting Rights and Outstanding Shares
Only holders of record of our common stock as of the close of
business on October 16, 2018 are entitled to
receive notice of, and to vote at, the Annual Meeting. The
outstanding common stock constitutes the only class of our
securities entitled to vote at the Annual Meeting, and each holder
of common stock shall be entitled to one vote for each share held
on all matters to be voted upon at the Annual Meeting. At the close
of business on October 22, 2018, there were 15,314,667
shares of
common stock issued and outstanding, which were held by
approximately 309 holders of record.
A quorum of stockholders is necessary to take action at the Annual
Meeting. Stockholders representing a majority of the outstanding
shares of our common stock present in person or represented by
proxy with authority to vote
on at least one matter to be presented at the meeting, which
includes brokers who are able to vote on any of the routine matters
presented at the Annual Meeting, will constitute a quorum. We will
appoint an election inspector for the meeting to determine whether
or not a quorum is present and to tabulate votes cast by proxy or
in person at the Annual Meeting.
All of our proposals
require the affirmative vote of holders of a majority of
outstanding shares present in person or by proxy and entitled to
vote at the Annual Meeting. Abstentions have the same effect as
negative votes on such proposals. Broker non-votes are not counted
for any purpose in determining whether proposals have been
approved.
Voting by Proxy by Mail
Stockholders whose shares are registered in their own names may
vote by proxy by mail. Instructions for voting by proxy by mail are
set forth on the Notice of Proxy Materials mailed to you, or on the
proxy card mailed to you if you chose to receive materials by
mail.
If you sign and return a proxy card by mail but do not give voting
instructions, your shares will be voted (1) FOR ALL of the
four (4) nominees named in Proposal No. 1 in this proxy
statement; (2) FOR the ratification of the appointment of
Plante & Moran, PLLC as the Independent Registered Public
Accounting Firm for the Company for the year ending
December 31, 2018; (3) FOR the approval of compensation
of our named executive officers (“NEOs”) as disclosed
in this proxy statement; and (4) as the proxy holders deem
advisable, in their discretion, on other matters that may properly
come before the Annual Meeting.
If your shares are held in street name, the voting instruction form
sent to you by your broker, bank or other nominee should indicate
whether the institution has a process for beneficial holders to
provide voting instructions over the Internet or by telephone. A
number of banks and brokerage firms participate in a program that
permits stockholders whose shares are held in street name to direct
their vote over the Internet or by telephone. If your bank or
brokerage firm gives you this opportunity, the voting instructions
from the bank or brokerage firm that accompany this proxy statement
will tell you how to use the Internet or telephone to direct the
vote of shares held in your account. If your voting instruction
form does not include Internet or telephone information, please
complete and return the voting instruction form in the
self-addressed, postage-paid envelope provided by your broker.
Stockholders who vote by proxy over the Internet or by telephone
need not return a proxy card or voting instruction form by mail,
but may incur costs, such as usage charges, from telephone
companies or Internet service providers.
Voting in Person at the Annual Meeting
If you plan to attend the Annual Meeting and wish to vote in
person, you will be given a ballot at the Annual Meeting. Please
note, however, that if your shares are held in “street
name,” which means your shares are held of record by a
broker, bank or other nominee, and you wish to vote at the Annual
Meeting, you must bring to the Annual Meeting a legal proxy from
the broker, bank or other nominee who is the record holder of the
shares, authorizing you to vote at the Annual Meeting.
Revocability of Proxies
Any proxy may be revoked at any time before it is exercised by
filing with the Company’s Corporate Secretary an instrument
revoking it or by submitting prior to the time of the Annual
Meeting a duly executed proxy bearing a later date. Stockholders
who have executed and returned a proxy and who then attend the
Annual Meeting and desire to vote in person are requested to so
notify the Corporate Secretary in writing prior to the time of the
Annual Meeting. We request that all such written notices of
revocation to the Company be addressed to Corporate Secretary,
MusclePharm Corporation, at the address of our principal executive
offices at 4400 Vanowen St.,
Burbank, CA 91505. Our telephone number is (800) 292-3909.
Stockholder Proposals to be Presented at the Next Annual
Meeting
Any stockholder who meets the requirements of the proxy rules under
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), may submit to the Board of Directors
proposals to be presented at the 2018 annual meeting. Such
proposals must comply with the requirements of Rule 14a-8 under the
Exchange Act. To be timely, a stockholder’s notice of a
proposal must be submitted in writing by notice delivered or mailed
by first-class United States mail, postage prepaid, to our
Corporate Secretary at our principal executive offices at the
address set forth above no earlier than July 16, 2018 and no later than
August 15,
2018.
The chairman of the meeting may refuse to acknowledge the
introduction of any stockholder proposal if it is not made in
compliance with the applicable notice provisions.
EXECUTIVE OFFICERS AND DIRECTORS
The names of our directors and executive officers, their ages as of
October 26, 2018 and certain other information about them are set
forth below. There are no family relationships among any of our
directors or executive officers.
Name
|
|
Age
|
|
Position
|
Ryan Drexler
|
|
47
|
|
Chief Executive Officer, President and Chairman of the Board of
Directors
|
Brian
Casutto
|
|
47
|
|
Executive Vice President of Sales and Operations and
Director
|
William
Bush
|
|
53
|
|
Director
|
John
J. Desmond
|
|
68
|
|
Director
|
RYAN DREXLER – CHIEF EXECUTIVE OFFICER, PRESIDENT AND
CHAIRMAN OF THE BOARD OF DIRECTORS
Ryan
Drexler was appointed to serve as our Chief Executive Officer and
President on November 18, 2016. Prior to that, Mr. Drexler served
as our Interim Chief Executive Officer, President and Chairman of
the Board of Directors since March 15, 2016. Mr. Drexler
has served as Chairman of our Board of Directors since
August 26, 2015. Mr. Drexler is currently the Chief
Executive Officer of Consac, LLC (“Consac”), a
privately-held firm that invests in the securities of
publicly-traded and venture-stage companies. Previously,
Mr. Drexler served as President of Country Life Vitamins, a
family-owned nutritional supplements and natural products company
that he joined in 1993. In addition to developing strategic
objectives and overseeing acquisitions for Country Life,
Mr. Drexler created new brands that include the BioChem family
of sports and fitness nutrition products. Mr. Drexler
negotiated and led the process which resulted in the sale of
Country Life in 2007 to the Japanese conglomerate Kikkoman Corp.
Mr. Drexler graduated from Northeastern University, where he
earned a B.A. in political science. Because of his experience in
running and developing nutritional supplement companies, we believe
that Mr. Drexler is well qualified to serve on our Board of
Directors.
BRIAN CASUTTO – EXECUTIVE VICE PRESIDENT OF SALES AND
OPERATIONS AND DIRECTOR
Brian
Casutto was appointed to the Board of Directors as a director
during July 2017. Mr. Casutto was appointed to the role of
Executive Vice President of Sales and Operations in July of 2015.
Mr. Casutto joined MusclePharm in June of 2014 to lead product
development and brand positioning of the Natural Series. From 1997
to 2014, Mr. Casutto served as Executive Vice President, Sales for
Country Life Vitamins. Because of his experience in running and
developing nutritional supplement companies, we believe that Mr.
Casutto is well qualified to serve on our Board of
Directors.
WILLIAM BUSH – DIRECTOR
William
Bush joined our Board of Directors as an independent director in
May 2015 and serves as lead director, as chair of the Compensation
Committee, as a member of the Audit Committee and as Chair of the
Nominating & Corporate Governance Committee. Since November
2016, Mr. Bush serves as chief financial officer of Stem, Inc., a
leading software-driven energy storage provider. From January 2010
to November 2016, Mr. Bush served as the chief financial
officer of Borrego Solar Systems, Inc., which is one of the
nation’s leading financiers, designers and installers of
commercial and industrial grid-connected solar systems. From
October 2008 to December 2009, Mr. Bush served as the chief
financial officer of Solar Semiconductor, Ltd., a private
vertically integrated manufacturer and distributor of photovoltaic
modules and systems targeted for use in industrial, commercial and
residential applications, with operations in India, helping it
reach $100 million in sales in its first 15 months of operation.
Prior to that, Mr. Bush served as chief financial officer and
corporate controller for a number of high growth software and
online media companies as well as being one of the founding members
of Buzzsaw.com, Inc., a spinoff of Autodesk, Inc. Prior to his work
at Buzzsaw.com, Mr. Bush served as corporate controller for
Autodesk, Inc. (NasdaqGM: ADSK), the fourth largest software
applications company in the world. Because of his significant
experience in finance, we believe that Mr. Bush is well qualified
to serve on our Board of Directors.
JOHN J. DESMOND –DIRECTOR
John J.
Desmond joined our Board of Directors as an independent director in
July 2017 and serves as chair of the Audit Committee, a member of
the Nominating & Corporate Governance Committee, and a member
of the Compensation Committee. Previously, Mr. Desmond was
Partner-in-Charge of the Long Island (New York) office of Grant
Thornton LLP from 1988 through his retirement from the firm in
2015, having served over 40 years in the public accounting
profession. At Grant Thornton LLP, Mr. Desmond's experience
included among other things, serving as lead audit partner for many
public and privately-held global companies. Mr. Desmond was elected
by the U.S. Partners of Grant Thornton LLP to their Partnership
Board from 2001 through 2013. The Partnership Board was responsible
for oversight of many of the firm's activities including strategic
planning, the performance of the senior leadership team and
financial performance. Mr. Desmond currently serves on the Board of
Directors of The First of Long Island (Nasdaq: FLIC) and its wholly
owned bank subsidiary, The First National Bank of Long Island,
and has been a director since October 2016. Mr. Desmond also
serves or has served as a Board member of a number of
not-for-profit entities. Mr. Desmond holds a B.S. degree in
Accounting from St. John's University and is a Certified Public
Accountant. Because of his significant experience in corporate
governance, banking, strategic planning, business leadership,
organizational management and business operations, accounting and
financial reporting, finance, mergers and acquisitions, legal
and regulatory, we believe that Mr. Desmond is well qualified to
serve on our Board of Directors.
Board of Directors
Our Board of Directors may establish the authorized number of
directors from time to time by resolution. Our bylaws authorize a
Board of Directors to consist of between one and nine members. The
number of directors currently authorized by resolution of the Board
of Directors is four. Four directors are nominated to be elected at
the Annual Meeting. Our nominated directors, if elected, will
continue to serve as directors until the next annual meeting of
stockholders and until his successor has been elected and
qualified, or until his or her earlier death, resignation, or
removal.
Our Board of Directors held seven meetings during
2017. The Board of Directors also acted four times by
unanimous written consent. No member of our Board of Directors
attended fewer than 75% of the aggregate of the total number of
meetings of the Board of Directors (held during the period for
which he was a director) and the total number of meetings held by
all committees of the Board of Directors on which such director
served (held during the period that such director served). Members
of our Board of Directors are invited and encouraged to attend each
annual meeting of stockholders.
Board Leadership Structure
Ryan Drexler, our Chief Executive Officer and President, serves as
Chairman of our Board of Directors and presides over meetings of
the Board of Directors, and holds such other powers and carries out
such other duties as are customarily carried out by the Chairman of
our Board of Directors. Mr. Drexler brings valuable insight to
our Board of Directors due to the perspective and experience that
he brings as our Chief Executive Officer and
President.
Director Independence
We are an over-the-counter listed company we have nevertheless
opted under our Corporate Governance Guidelines to comply with
certain Nasdaq corporate
governance rules requiring director independence. The Board of
Directors has determined that our non-employee
directors, Mr.
Desmond and
Mr. Bush, are each
“independent directors” as such term is defined
in Nasdaq Marketplace
Rule 5605(a)(2) and, therefore, the
Compensation Committee, Nominating
& Corporate Governance Committee, and
Audit Committee are each
comprised solely of independent directors.
Audit Committee members must also satisfy the independence criteria
set forth in Rule 10A-3 under the Exchange Act. In order to be
considered independent for purposes of Rule 10A-3, a member of an
audit committee of a listed company may not, other than in his or
her capacity as a member of the audit committee, the Board of
Directors, or any other board committee: accept, directly or
indirectly, any consulting, advisory, or other compensatory fee
from the listed company or any of its subsidiaries; or be an
affiliated person of the listed company or any of its
subsidiaries.
Our Board of Directors has determined that none of our non-employee
directors has a relationship that would interfere with the exercise
of independent judgment in carrying out the responsibilities of a
director and that each of these directors is
“independent” as that term is defined under the rules
of Nasdaq. Our Board of
Directors has also determined that past and present Directors, who
comprise our Audit Committee, Compensation Committee, Nominating
& Corporate Governance Committee and our Strategic Initiatives
Committee, satisfied and satisfy the independence standards for
those committees established by applicable SEC rules,
Nasdaq
rules and applicable rules of the Internal Revenue Code of 1986, as
amended.
Involvement in Certain Legal Proceedings
Except as outlined below, to our knowledge, during the past ten
(10) years, none of our directors, executive officers,
promoters, control persons, or nominees has been:
|
●
|
|
the subject of any bankruptcy petition filed by or against any
business of which such person was a general partner or executive
officer either at the time of the bankruptcy or within two years
prior to that time;
|
|
●
|
|
convicted in a criminal proceeding or is subject to a pending
criminal proceeding (excluding traffic violations and other minor
offenses);
|
|
●
|
|
subject to any order, judgment, or decree, not subsequently
reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, barring,
suspending or otherwise limiting his involvement in any type of
business, securities or banking activities; or
|
|
●
|
|
found by a court of competent jurisdiction (in a civil action), the
Commission or the Commodity Futures Trading Commission to have
violated a federal or state securities or commodities
law.
|
Board Committees
Our Board of Directors has established an Audit Committee, a
Compensation Committee, and a Nominating &
Corporate Governance Committee, each of which have the composition
and responsibilities described below. Members serve on these
committees until their resignations or until otherwise determined
by our Board of Directors. The Board of Directors has further
determined that Messrs. Desmond and Bush, chair and member,
respectively, of the Audit Committee of the Board of Directors, are
both an “Audit Committee Financial Expert,” as such
term is defined in Item 407(d)(5) of Regulation S-K
promulgated by the SEC, by virtue of their relevant experience
listed in their respective biographical summaries provided above in
the section entitled “Executive Officers and
Directors.” Each of these committees has a written charter.
Current copies of the charters of the Audit Committee, Compensation
Committee, and Nominating & Corporate Governance Committee
are available on our website at
ir.musclepharmcorp.com/governance-documents.
Audit Committee. The Audit
Committee reviews the work of our internal accounting and audit
processes and the Independent Registered Public Accounting Firm.
The Audit Committee has sole authority for the appointment,
compensation and oversight of our Independent Registered Public
Accounting Firm and to approve any significant non-audit
relationship with the Independent Registered Public Accounting
Firm. The Audit Committee is also responsible for preparing the
report required by the rules of the SEC to be included in our
annual proxy statement. The Audit Committee is currently comprised
of Mr. Desmond, as chair, and Mr. Bush, as a member.
Mr. Desmond assumed the role of chair of the Audit Committee
in July 2017 from Mr. Bush who served as chair since May 2015.
During 2017, the Audit Committee held four
meetings.
Compensation Committee. The
Compensation Committee approves our goals and objectives relevant
to compensation, stays informed as to market levels of compensation
and, based on evaluations submitted by management, recommends to
our Board of Directors compensation levels and systems for the
Board of Directors and our officers that correspond to our goals
and objectives. The Compensation Committee, with the assistance of
Longnecker, also produces an annual report on executive
compensation for inclusion in our proxy statement.
The Compensation Committee is
currently comprised of Mr. Bush, as chair, and Mr. Desmond, as
a member. Mr. Desmond joined the Compensation Committee in
July 2018 and Mr. Bush joined as a member in May 2015. During
2017, the Compensation Committee held four
meetings.
Nominating & Corporate Governance
Committee. The
Nominating & Corporate Governance Committee is responsible
for recommending to our Board of Directors individuals to be
nominated as directors and committee members. This includes
evaluation of new candidates as well as evaluation of current
directors. In evaluating the current directors, the
Nominating & Corporate Governance Committee conducted a
thorough self-evaluation process, which included the use of
questionnaires and a third-party expert that interviewed each of
the directors and provided an analysis of the results of the
interviews to the committee. This committee is also responsible for
developing and recommending to the Board of Directors our corporate
governance guidelines, as well as reviewing and recommending
revisions to the guidelines on a regular basis. The
Nominating & Corporate Governance Committee is currently
comprised of Mr. Bush, as chair and Mr. Desmond, as a member.
During 2017, the Nominating & Corporate Governance
Committee held no meetings.
Refinancing Committee. The Refinancing
Committee was established as a special committee to evaluate
options and make a recommendation to our Board of Directors to
refinance our debt. The Refinancing Committee was comprised of Mr.
Bush, as chair and Mr. Desmond, as a member. The committee was
dissolved once the refinancing was complete.
Director Nominations
The director qualifications developed to date focus on what the
Board believes to be essential competencies to effectively serve on
the Board. The Nominating & Corporate Governance Committee
may consider the following criteria in recommending candidates for
election to the board:
|
●
|
|
experience in corporate governance, such as an officer or former
officer of a publicly held company;
|
|
●
|
|
experience in the Company’s industry;
|
|
●
|
|
experience as a board member of other publicly held companies;
and
|
|
●
|
|
technical expertise in an area of the Company’s
operations.
|
The Nominating & Corporate Governance Committee evaluates
each individual in the context of the Board as a whole, with the
objective of assembling a Board that can best perpetuate the
success of the Company and represent stockholder interests through
the exercise of sound judgment using its diversity of
experience.
Prior to each annual meeting of stockholders at which directors are
to be elected, and whenever there is otherwise a vacancy on the
Board of Directors, the Nominating & Corporate Governance
Committee will consider incumbent Board members and other
well-qualified individuals as potential director nominees. The
Nominating & Corporate Governance Committee will determine
whether to retain an executive search firm to identify Board
candidates, and if so, will identify the search firm and approve
the search firm’s fees and other retention terms and will
specify for the search firm the criteria to use in identifying
potential candidates, consistent with the director qualification
criteria described above. The Nominating & Corporate
Governance Committee will review each potential candidate.
Management may assist the Nominating & Corporate
Governance Committee in the review process at the
Nominating & Corporate Governance Committee’s
direction. The Nominating & Corporate Governance Committee
will select the candidate or candidates it believes are the most
qualified to recommend to the Board for selection as a director
nominee. Our Nominating & Corporate Governance Committee
will consider candidates recommended by our stockholders in
accordance with the procedures set forth in the
Nominating & Corporate Governance Committee Charter
and our
bylaws. Candidates recommended by the stockholders are evaluated in
the same manner as candidates identified by a Nominating &
Corporate Governance Committee member.
Each of the nominees for election as director at the 2018 Annual
Meeting is recommended by the Nominating & Corporate
Governance Committee. Messrs. Bush, Casutto,
Desmond and Drexler are presently directors and stand for
re-election by the stockholders.
Stockholders who wish to nominate persons for election to the Board
of Directors at an annual meeting must be a stockholder of record
both at the time of giving the notice and at the meeting, must be
entitled to vote at the meeting and must comply with the notice
provisions in our bylaws. A stockholder’s notice of
nomination to be made at an annual meeting must be delivered to our
principal executive offices not less than 90 days nor more than 120
days before the anniversary date of the immediately preceding
annual meeting. However, if an annual meeting is more than 30 days
before or more than 60 days after such anniversary date, the notice
must be delivered no later than the 90th day prior to such annual
meeting or, if later, the 10th day following the day on which the
first public announcement of the date of such annual meeting was
made. A stockholder’s notice of nomination to be made at a
special meeting at which the election of directors is a matter
specified in the notice of meeting must be delivered to our
principal executive offices not earlier than the 120th day prior to
and not later than the 90th day prior to such special meeting or,
if later, the 10th day following the day on which first public
announcement of the date of such special meeting was made. The
stockholder’s notice must include the following information
for the person making the nomination:
|
●
|
|
the class and number of shares of the Company owned beneficially or
of record;
|
|
●
|
|
disclosure regarding any derivative, swap or other transactions
which give the nominating person economic risk similar to ownership
of shares of the Company or provide the opportunity to profit from
an increase in the price or value of shares of the
Company;
|
|
●
|
|
any proxy, agreement, arrangement, understanding or relationship
that confers a right to vote any shares of the
Company;
|
|
●
|
|
any agreement, arrangement, understanding or relationship, engaged
in to mitigate economic risk related to, or the voting power with
respect to, shares of the Company;
|
|
●
|
|
any rights to dividends on the shares that are separate from the
underlying shares;
|
|
●
|
|
any performance related fees that the nominating person is entitled
to be based on any increase or decrease in the value of any shares
of the Company; and
|
|
●
|
|
any other information relating to the nominating person that would
be required to be disclosed in a proxy statement filed with the
SEC.
|
The stockholder’s notice must also include the following
information for each proposed director nominee:
|
●
|
|
description of all direct and indirect financial or other
relationships between the nominating person and the nominee during
the past three years;
|
|
●
|
|
the same information as for the nominating person (see above);
and
|
|
●
|
|
all information required to be disclosed in a proxy statement in
connection with a contested election of directors.
|
The stockholder’s notice must be updated and supplemented, if
necessary, so that the information required to be provided in the
notice is true and correct as of the record date for the meeting
and as of the date that is ten business days prior to the
meeting.
The chairman of the meeting will determine if the procedures in the
bylaws have been followed, and if not, declare that the nomination
be disregarded. The nominee must be willing to provide any other
information reasonably requested by the Nominating &
Corporate Governance Committee in connection with its evaluation of
the nominee’s independence.
Stockholder Communications with the Board of Directors
Stockholders may send correspondence to the Board of Directors or
any member of the Board of Directors, c/o the Corporate Secretary
at our principal executive offices at the address set forth above.
The Corporate Secretary will review all correspondence addressed to
the Board of Directors, or any individual Board member, for any
inappropriate correspondence and correspondence more suitably
directed to management. However, the Corporate Secretary will
summarize all correspondence not forwarded to the Board of
Directors and make the correspondence available to the Board of
Directors for its review at the Board of Director’s request.
The Corporate Secretary will forward stockholder communications to
the Board of Directors prior to the next regularly scheduled
meeting of the Board of Directors following the receipt of the
communication.
Director Compensation
Non-Employee Director Compensation Arrangements
The
Board of Directors had adopted a non-employee director compensation
policy that provides annual retainer fees to each of our
non-employee directors. The annual retainer fee was at a rate of
$55,000 for the first and second quarter of 2017. The Lead Director
received an additional $25,000 annual retainer under this policy.
Additionally, Committee members received annual retainers as
follows:
|
|
Committee
|
|
|
Audit
Committee
|
$20,000
|
$8,500
|
Compensation
Committee
|
15,000
|
6,500
|
Nominating &
Corporate Governance Committee
|
7,500
|
5,000
|
Strategic
Initiative Committee
|
7,500
|
5,000
|
In July 2017, the Board approved a new compensation program
for our non-employee
directors. Under this policy,
as of July 1, 2017, Mr. Bush and Mr. Desmond will earn
annual cash retainer fees of $140,000 and $100,000,
respectively, and be granted,
on an annual basis, restricted
shares having a grant date fair value of $100,000 and $150,000,
respectively. Additionally, in conjunction with our refinancing,
each member of our refinancing committee, were granted a onetime
fee of $40,000. Our non-employee directors will also receive an
additional cash payment to compensate them for taxes payable in
respect of their restricted share grants, described
below.
All cash retainers are prorated for partial years of service. We
pay annual cash retainer fees to our non-employee directors quarterly. We also
reimburse our non-employee directors for their travel and out of
pocket expenses. Members of the Board of Directors who also are our
employees do not receive any compensation for their service as
directors. Our directors do not receive Board meeting fees. For
2017, each of our non-employee directors received awards of
restricted common stock having a grant date value as described above,
which were granted in quarterly
installments. The number of shares for each quarterly award
was determined by dividing
[one-fourth of] the dollar value above
by the average closing price of MusclePharm’s common stock
for the first fifteen business days of the first month of
such quarter. For
2017, our non-employee directors also received additional cash
payments to compensate them for taxes payable in respect of their
restricted share awards.
2017 Director Compensation. The table below sets forth the compensation
paid to each non-employee member of the Board of Directors during
the fiscal year ended December 31, 2017. Messrs. Drexler and
Casutto received no additional
compensation for their service as a director, and, consequently,
are not included in this table. The compensation received by
Messrs. Drexler and Casutto in respect of their employment is set
forth in the “Summary Compensation Table”
below.
Name
|
Fees Earnedor
Paidin Cash ($)
|
|
All Other
Compensation(2)
($)
|
|
John J.
Desmond
|
$90,000
|
$150,000
|
$12,200
|
$212,200
|
William J.
Bush
|
199,000
|
121,900
|
63,300
|
344,200
|
Michael
Doran(3)
|
133,625
|
87,500
|
—
|
221,125
|
(1)
The grant date fair
value of stock awards was calculated in accordance with FASB ASC
Topic 718, disregarding the effects of estimated forfeitures, based
upon the closing price of a share of our common stock on the date
of grant. As of December 31, 2017, the aggregate number of shares
of restricted stock held by our non-employee directors was as
follows:
Name
|
Number of Stock Awards Outstanding as
of
December 31,
2017
|
John J.
Desmond
|
60,160
|
William J.
Bush
|
40,107
|
(2)
Amounts reported in
this column represent additional cash payments paid to each of our
non-employee directors for taxes payable in respect of their
restricted share awards.
(3)
Mr. Doran retired
from our Board of Directors effective in June 2017.
Code of Conduct
Our Board of Directors established a Code of Conduct applicable to
our officers and employees. The Code of Conduct is accessible on
our website at www.musclepharmcorp.com. If we make any substantive
amendments to the Code of Conduct or grant any waiver, including
any implicit waiver, from a provision of the Code of Conduct to our
officers, we will disclose the nature of such amendment or waiver
on our website or in a report on Form 8-K.
Corporate Governance Overview
Our business, assets and operations are managed under the direction
of our Board of Directors. Members of our Board of Directors are
kept informed of our business through discussions with our Chief
Executive Officer, our external counsel, members of management and
other Company employees as well as our independent auditors, and by
reviewing materials provided to them and participating in meetings
of the Board of Directors and its committees.
In addition to its management oversight function, our Board of
Directors remains committed to strong and effective corporate
governance, and, as a result, it regularly monitors our corporate
governance policies and practices to ensure we meet or exceed the
requirements of applicable laws, regulations and rules, the Nasdaq
listing standards (even though we are not subject to them), as well
as the best practices of other public companies.
Our corporate governance program features the
following:
●
a
Board of Directors that is nominated for election
annually;
●
we
have no stockholder rights plan in place;
●
periodically updated charters for each of
the Board’s committees,
which clearly establish the roles and responsibilities of each such
committee;
●
regular
executive sessions among our non-employee and independent
directors;
●
a
Board of Directors that enjoys unrestricted access to our
management, employees and professional advisers;
●
a
clear Code of Conduct that is reviewed regularly for best
practices;
●
a
clear Insider Trading Policy that is reviewed
regularly;
●
a
Corporate Communications Policy that is reviewed with employees and
the Board periodically;
●
a
clear set of Corporate Governance Guidelines that is reviewed
regularly for best practices;
●
no
board member is serving on an excessive number of public company
boards; and
Board of Directors Role in Risk Management
The Board of Directors oversees an enterprise-wide approach to risk
management, designed to support the achievement of organizational
objectives, including strategic objectives, to improve long-term
organizational performance and enhance stockholder value. Risk
management includes not only understanding company specific risks
and the steps management implements to manage those risks, but also
the level of risk acceptable and appropriate for us. Management is
responsible for establishing our business strategy, identifying and
assessing the related risks and implementing appropriate risk
management practices. Our Board of Directors reviews our business
strategy and management’s assessment of the related risk, and
discusses with management the appropriate level of risk for us. For
example, the Board of Directors meets with management at least
quarterly to review, advise and direct management with respect to
strategic business risks, risks related to our new product
development, financial risks, among others. The Board of Directors
also delegates oversight to Board committees to oversee selected
elements of risk.
The Audit Committee oversees financial risk exposures, including
monitoring the integrity of our financial statements, internal
controls over financial reporting, and the independence of our
Independent Registered Public Accounting Firm. The Audit Committee
reviews periodic internal controls and related assessments from our
finance department. The Audit Committee also assists the Board of
Directors in fulfilling its oversight responsibility with respect
to compliance matters and meets at least quarterly with our finance
department, Independent Registered Public Accounting Firm and
internal or external legal counsel to discuss risks related to our
financial reporting function. In addition, the Audit Committee
ensures that our business is conducted with the highest standards
of ethical conduct in compliance with applicable laws and
regulations by monitoring our Code of Business Conduct and our
Corporate Compliance Hotline, and the Audit Committee discusses
other risk assessment and our risk management policies periodically
with management.
The Compensation Committee participates in the design of the
compensation program and helps create incentives that do not
encourage a level of risk-taking behavior that is inconsistent with
our business strategy.
The Nominating & Corporate Governance Committee oversees
governance-related risks by working with management to establish
corporate governance guidelines applicable to us, and making
recommendations regarding director nominees, the determination of
director independence, Board of Directors leadership structure and
membership on Board committees.
EXECUTIVE COMPENSATION
Overview
We are eligible to take advantage of the rules applicable to a
“smaller reporting company,” as defined in the Exchange
Act, for the fiscal year ended December 31, 2017. As a
“smaller reporting company” we are permitted, and have
opted, to comply with the scaled back executive compensation
disclosure rules applicable to a “smaller reporting
company” under the Exchange Act. Only two individuals served
as executive officers, as defined in Rule 3b-7 under the Exchange
Act, as of the end of the fiscal year ended December 31, 2017 and
only one additional individual served as an executive officer at
any time during such fiscal year. The following discussion relates
to the compensation of those executive officers, who we refer to as
our “named executive officers” or
“NEOs” in this
proxy statement. For the fiscal year ended December 31, 2017, our
NEOs were:
●
Ryan
Drexler—Chief Executive Officer, President and Chairman of
the Board of Directors;
●
Brian
Casutto – Executive Vice President of Sales and Operations;
and
●
Brent
Baker – Former Executive Vice President of International
Business*
*Mr. Baker’s employment with the Company terminated on March
23, 2017.
Our executive compensation program is designed to attract, motivate
and retain talented executives that will drive Company growth and
create long-term shareholder value. The Compensation Committee
oversees and administers our executive compensation program, with
input and recommendations from our Chief Executive
Officer.
Elements of Executive Compensation
Our executive compensation program has three main components: base
salary, cash bonuses and incentive equity awards. Our named
executive officers also receive employee benefits that are made
available to our salaried employees generally, are eligible to
receive certain compensation and benefits in connection with a
change in control or termination of employment, and receive certain
perquisites, in each case, as described below.
Base Salary
The Compensation Committee determined the initial base salary for
each of our named executive officers and each year determines
whether to approve any base salary adjustments based upon the
Company’s performance, the named executive officer’s
individual performance, changes in duties and responsibilities of
the named executive officer and the recommendations of our Chief
Executive Officer (other than with respect to his own base salary).
For 2017, Messrs. Drexler’s and Casutto’s base salaries
were not increased from 2016 levels and Mr. Baker’s annual
base salary was increased by $50,000. For 2017, our named executive
officers’ base salaries were as follows:
|
|
Ryan
Drexler
|
$550,000
|
Brian
Casutto
|
$400,000
|
Brent
Baker
|
$350,000
|
Cash Bonuses
Pursuant to their employment agreements, each of our named
executive officers is eligible to earn a cash bonus, with a target
amount established by the Compensation Committee, based on the
achievement of specified performance goals. For 2017, the target
bonus amount was $300,000 for Mr. Casutto and $400,000 for Mr.
Baker. Mr. Drexler was eligible to receive cash bonuses of up to
$350,000 based on the achievement of specified performance goals.
For 2017, Messrs. Drexler and Casutto earned cash bonuses in the
amounts set forth in the “Summary Compensation Table”
below. In connection with his termination of employment in March
2017, Mr. Baker received a bonus of $80,311 for the first quarter
of 2018.
Incentive Equity Awards
Incentive equity awards granted by the Company have historically
been in the form of restricted stock awards. The Company also
grants stock options from time to time. The Compensation Committee
believes that equity-based awards are an effective retention tool
that also align our executives’ interests with those of our
stockholders. In 2017, we granted Mr. Drexler 350,000 shares of
restricted stock, which vested in full on the first anniversary of
the grant date. Mr. Drexler’s equity awards also vest in full
upon a termination of his employment or upon change in control.
None of our other named executive officers were granted
equity-based awards in 2017. In connection with his termination of
employment in March 2017, 10,000 shares of restricted stock held by
Mr. Baker that were granted in 2016 vested in full in accordance
with the original terms of the grant.
Employment Agreements
We have entered into employment agreements with each of Mr. Drexler
and Mr. Casutto that include certain severance and change in
control payments. These
agreements are described in detail under “Narrative
Disclosure to Summary Compensation Table”
below.
Employee
Benefit Plans and Perquisites
We maintain a Section 401(k) Savings/Retirement Plan (the
401(k) Plan) for eligible employees of the Company and certain
affiliates, including our named executive officers. The 401(k) Plan
permits eligible employees to defer up to the maximum dollar amount
allowed by law. The employee’s elective deferrals are
immediately vested upon contribution to the 401(k) Plan. We
currently make discretionary matching contributions to the 401(k)
Plan in an amount equal to 100% of each eligible employee’s
deferrals up to 4% of his or her qualifying compensation, subject
to a total employer contribution maximum of $10,600 and limits
imposed by applicable law.
We do not maintain any other defined benefit, defined contribution
or deferred compensation plans for our employees.
Our current named executive officers are eligible to participate in
all of our employee benefit plans, such as medical, dental, vision,
group life and disability insurance, in each case on the same basis
as our other employees, subject
to applicable law. We also provide vacation and other paid holidays
to all employees, including our current named executive officers. In addition, we provide
certain highly-compensated employees, including our current named
executive officers, with life insurance and supplemental long-term
disability coverage. We also provide certain perquisites, as
described and quantified in the Summary Compensation Table below
under “All Other Compensation.”
Summary Compensation Table
The following summary compensation tables sets forth all
compensation awarded to, earned by, or paid to our named executive
officers for 2017 and 2016 in respect of their employment with the
Company.
Name and Principal Position
|
|
|
|
|
|
All
OtherComp-ensation($)
|
|
Ryan Drexler (1)
|
|
|
|
|
|
|
|
Chairman
of the Board,
|
2017
|
550,000
|
426,226
|
686,000(2)
|
—
|
31,841(7)
|
1,694,067
|
Chief
Executive Officer and President
|
2016
|
466,667(1)
|
750,000
|
454,000(3)
|
236,263(4)
|
76,155
|
1,983,085
|
|
|
|
|
|
|
|
Brian
Casutto
|
2017
|
400,000
|
178,670
|
—
|
—
|
93,641(7)
|
672,311
|
Executive
Vice President of Sales and Operations
|
2016
|
395,833
|
233,750
|
94,500(5)
|
—
|
28,176
|
752,259
|
|
|
|
|
|
|
|
Brent Baker (6)
|
2017
|
136,123
|
80,311
|
—
|
—
|
361,178(7)
|
577,612
|
Former
Executive Vice President of International Business
|
2016
|
300,000
|
210,000
|
—
|
—
|
30,179
|
540,179
|
(1)
Mr. Drexler is our Chief Executive Officer, President and the
Chairman of the Board of Directors. On November 18, 2016, Mr.
Drexler agreed to continue to serve as the Chairman of the Board of
Directors and as our Chief Executive Officer and President. For
information regarding certain transactions between Mr. Drexler and
the Company, see “Related
Party Transactions” below.
(2)
Reflects the grant date fair value of
the restricted stock award granted to
Mr. Drexler in 2017, calculated
in accordance with FASB ASC Topic 718, disregarding the effects of
estimated forfeitures, based on the closing price of our common
stock of $1.96 on the date of the grant multiplied by the number of
shares of restricted stock granted.
(3)
Reflects the grant date fair value of
the restricted stock award granted to
Mr. Drexler in 2016, calculated in accordance with FASB ASC Topic
718, disregarding the effects of estimated forfeitures, based on
the closing price of our common stock of $2.27 on the date of the
grant multiplied by the number of shares of restricted stock
granted.
(4)
Reflects
the grant date fair value of the option awards granted to Mr.
Drexler in 2016, calculated in accordance with FASB ASC Topic 718,
disregarding the effects of estimated forfeitures. The grant date
fair value of $1.72 per share was determined using the Black-Sholes
option-pricing model, with the following assumptions:
|
For
the Year Ended
December 31,
2016
|
|
Expected term of options
|
6.5 years
|
|
Expected stock price volatility
|
131.0%
|
|
Expected dividend yield
|
0%
|
|
Risk-free interest rate
|
1.71%
|
|
(5)
Reflects the grant date fair value of the
restricted stock award granted
to Mr. Casutto in 2016, calculated in accordance with FASB ASC
Topic 718, disregarding the effects of estimated forfeitures, based
on the closing price of our common stock of $1.89 on the date of
the grant multiplied by the number of shares of restricted stock
granted.
(6)
Mr.
Baker’s employment with the Company terminated on March 23,
2017.
(7)
Amounts
under All Other Compensation for 2017 include Company 401(k)
matching contributions, insurance premiums paid by the Company on
behalf of our named executive officers, perquisites and severance
payments, as follows:
|
|
|
|
Company
401(k) Matching Contributions
|
$—
|
$—
|
$5,575
|
Severance (a)
|
—
|
—
|
350,000
|
Miscellaneous (b)
|
16,204
|
19,292
|
900
|
Automobile Expenses (c)
|
—
|
20,967
|
3,250
|
Housing Costs(d)
|
15,637
|
46,215
|
—
|
Insurance Premiums(e)
|
—
|
7,167
|
1,453
|
TOTAL
|
$31,841
|
$93,641
|
$361,178
|
|
(a)
|
Represents the amount of severance paid or accrued in 2017 relating
to Mr. Baker’s termination of employment. For details
relating to these payments, see “Narrative Disclosure to
Summary Compensation Table” below.
|
|
(b)
|
These amounts include amounts paid by the Company for miscellaneous
expenses, including Company-provided matching contributions to
health savings accounts for our named executive officer and amounts
paid for expenses incurred by our named executive officers that
were not adequately substantiated or did not qualify as a
reimbursable business expense under our expense reimbursement
policy.
|
|
(c)
|
We provided an automobile allowance for Mr. Casutto, and the use of
a Company car by Mr. Casutto while he was in Colorado. For the Company car provided to Mr.
Casutto, during 2017, the
Company insured the car under
its insurance programs, paid
all registration, license, taxes and other fees on the car,
paid for all repairs and
reimbursed for all gas and maintenance
costs on the car. The amount disclosed in the table above for Mr.
Cassuto represents one-half of the total annual cost
for 2017 to the Company for the
Company car.
|
|
(d)
|
We paid for temporary housing for Mr. Casutto and Mr. Drexler for
periods when they lived in Colorado while they maintained residency
outside of the state.
Additionally, we provide
housing for Mr. Casutto for his apartment in California as his
residency remains out of the State. The amounts disclosed in the
table above represents rent and utility costs billed by the
landlord for this temporary housing.
|
|
(e)
|
Insurance premiums were paid pursuant to our employee health
insurance plan.
|
Narrative Disclosure to Summary Compensation Table
We have entered into employment agreements with each of Mr. Drexler
and Mr. Casutto that include certain severance and change in
control payments and entered into a separation agreement with Mr.
Baker that provides for severance benefits, in each case, as
described below. As used below, the terms “without
cause,” “good reason,” “qualifying
sale,” “aggregate purchase price,”
“performance bonus,” “cash-based
incentives,” and “change in control” are defined
in the applicable agreements.
Mr. Drexler. Mr. Drexler is
party to an employment agreement with the Company, which was
entered into as of February 11, 2016 and has subsequently been
amended and restated, most recently effective as of February 1,
2018. Subject to earlier termination as provided therein, the term
of his agreement runs through February 1, 2021 and automatically
renews for successive one-year terms thereafter, unless either
party provides at least three months’ written notice of its
or his intention not to review. Under his employment agreement,
Mr. Drexler was entitled to a base salary of $550,00 per year
for 2017 and is entitled to a base salary of $700,000 per year for
2018, which will be increased to $750,000 per year effective
January 1, 2020, in each case, subject to increase by the board.
For 2017, Mr. Drexler was eligible to receive cash-based incentives
of up to $350,000 based on the achievement of specified performance
goals and, under his amended and restated agreement, is eligible to
receive a 2018 performance bonus equal to 75% of his annual base
salary, subject to the Company’s achievement of specified
performance conditions unless otherwise determined by the Board.
Under his amended and restated employment agreement, Mr. Drexler is
also eligible to receive additional cash-based incentives of up to
$350,000 based on the achievement of specified performance
goals.
Concurrently with entering into the amended and restated employment
agreement in February 2018, Mr. Drexler and the Company entered
into a transaction bonus agreement, which provides that, upon the
occurrence of a qualifying sale, and provided that at the time of
the qualifying sale Mr. Drexler is an owner of at least 20% of the
shares of the Company, Mr. Drexler will be entitled to a
transaction bonus equal to 10% of the aggregate purchase price, if
such price is in excess of $50 million. Mr. Drexler is entitled to
this transaction bonus regardless of whether the qualifying
transaction occurs during his employment or at any time
thereafter.
If Mr. Drexler’s employment is terminated for any reason,
each equity award granted to him will fully vest and he will be
entitled to any unpaid performance bonus or cash-based incentives
(as described above), to the extent earned as of the date of such
termination, in addition to any amounts required by law or Company
policy. In addition, if Mr. Drexler’s employment is
terminated by the Company without cause or by Mr. Drexler for good
reason prior to (but not in connection with) a qualifying sale, Mr.
Drexler will be entitled to receive (i) 12 months’ of base
salary continuation, (ii) up to 12 months’ of
Company-subsidized COBRA premiums, and (iii) a lump sum payment of
the performance bonus for the year his employment terminates. If
Mr. Drexler’s employment is terminated by the Company without
cause or by Mr. Drexler for good reason within 12 months
following (or prior to, but in connection with or anticipation of)
a qualifying sale, Mr. Drexler
will be entitled to receive, in lieu of the amounts described in
the preceding sentence, (i) a lump sum payment
equal to 200% of his annual base salary, (ii) up to 18
months’ of Company-subsidized COBRA, and (iii) a lump sum
payment equal to 200% of the performance bonus for the year his
employment terminates. The
severance payable to Mr. Drexler on a termination of his employment
by the Company without cause or by Mr. Drexler for good reason is
subject to his execution (and non-revocation) of a release of
claims in favor of the Company.
Under the employment agreement, Mr. Drexler has agreed to certain
restrictions on solicitation of employees, which continue for 12
months following the termination of his employment, if his
employment is terminated due to disability, by him for good reason
or by the Company with or without cause, due to expiration of the
employment period by notice of non-renewal or due to termination of
his employment upon a notice of termination. The employment
agreement also contains restrictions with respect to disclosure of
the Company’s confidential information.
Mr. Casutto. Mr. Casutto is
party to an employment agreement with the Company, which was
entered into as of July 15, 2015 and was amended and restated as of
January 1, 2018. The original term of the employment agreement
ended on December 31, 2017 and has been extended to December 31,
2018. Under his employment agreement, Mr. Casutto is entitled
to a base salary of $400,000 per year, which may be increased at
the discretion of the Compensation Committee. In addition, Mr.
Casutto is eligible to receive cash bonuses based on performance
criteria to be adopted by the Compensation Committee, with a
potential bonus pool of up to $350,000 per year, which may be
adjusted at the discretion of the Compensation Committee. Under his
employment agreement, Mr
Casutto is entitled to a monthly vehicle allowance of $1,000 and a
miscellaneous expense allowance of up to $5,000 per
year.
If Mr. Casutto’s employment is terminated without cause or he
resigns for good reason, he will be entitled to receive (i) base
salary continuation for the lesser of 12 months and the remainder
of the term of the employment agreement, (ii) a bonus equal to the
greater of 25% of his target bonus for the year (or 50%, if the
termination of employment occurs between July 1 and December 31 of
the year) and the bonus for the year of termination of employment,
as determined by the Compensation Committee at its discretion, and
(iii) reimbursement of COBRA premiums for up to 12 months. In
addition, unless otherwise provided in an equity award agreement,
all equity awards held by Mr. Casutto will vest in full. If Mr.
Casutto’s employment is terminated without cause or he
resigns for good reason within six months prior to (under certain
circumstances) or within two
years following a change in control (or the end of the term of the
employment agreement, if earlier), then Mr. Casutto will be
entitled to receive, in lieu of the amounts described above, (i)
base salary continuation for 12 months,(ii) a bonus equal to the
greater of 100% of his target bonus and the bonus for the year of
termination of employment as determined by the Compensation
Committee, (iii) a lump sum cash payment of $500,000, (iv)
reimbursement of COBRA premiums for up to 12 months and (v) all
equity and other incentive awards held by Mr. Casutto will fully
vest. If Mr. Casutto’s employment is terminated due to his
death or disability, he will be entitled to receive (i) the greater
of 100% of his target bonus for the year of termination or the
bonus for such year as determined by the Compensation Committee,
(ii) reimbursement of COBRA premiums for up to 12
months, and (iii) if such
termination is due to his disability, base salary continuation for
6 months. All severance payable to Mr. Casutto under his employment
agreement is subject to his execution (and non-revocation) of a
release of claims in favor of the Company.
Under the employment agreement, Mr. Casutto has agreed to certain
restrictions on competition and solicitation, which continue for 12
months following the termination of his employment. The employment
agreement also contains restrictions with respect to disclosure of
the Company’s confidential information.
Mr. Baker. Mr. Baker was party
to an employment agreement with the Company, which was entered into
as of January 1, 2016. Under his employment agreement,
Mr. Baker was entitled to a base salary of $350,000 for 2017,
subject to increase at the discretion of the Compensation
Committee. In addition, Mr. Baker was eligible to receive cash
bonuses based on performance criteria to be adopted by the
Compensation Committee, with a potential bonus pool of up to
$400,000 per year, payable quarterly.
Under the employment agreement, Mr. Baker agreed to certain
restrictions on competition and solicitation, which continue for 12
months following the termination of his employment. The employment
agreement also contained restrictions with respect to disclosure of
the Company’s confidential information.
Mr. Baker’s employment terminated on March 23, 2017. In
connection with his termination of employment, subject to his
execution (and non-revocation) of a release of claims in favor of
the Company, Mr. Baker became entitled to receive (i) severance in
the amount of $350,000, payable over a 12-month period, a lump sum
payment of $39,378, representing Mr. Baker’s accrued and
unused vacation time, and a first quarter bonus of $80,311, and
10,000 shares of unvested restricted stock held by Mr. Baker became
fully vested. In addition, the restrictions on competition
contained in his employment agreement were reduced to 6 months
following his termination of employment.
Outstanding Equity Awards at Year End
The following table provides information concerning restricted
stock and options to purchase shares of our common stock held by
our named executive officers as of December 31,
2017.
Outstanding Equity Awards at Year End
|
|
|
|
|
|
|
Number of Securities Underlying Unexercised Options (#)
Exercisable
|
Number of Securities Underlying Unexercised Options (#)
Unexercisable
|
Option Exercise Price ($)
|
|
Number of Shares of Stock that Have Not
Vested (1)
(#)
|
Market Value of Shares or Units of Stock
that Have Not Vested (2)
|
Ryan Drexler(3)
|
1/1/2017
|
|
|
|
|
$350,000
|
227,500
|
|
2/22/2016
|
120,191
|
$17,171
|
1.89
|
|
|
|
|
|
|
|
|
|
|
Brian
Casutto
|
10/1/2014
|
—
|
—
|
—
|
—
|
30,000
|
19,500
|
|
2/23/2016
|
—
|
—
|
—
|
—
|
20,000
|
13,000
|
(1)
|
The table below shows the vesting dates for the unvested shares of
restricted stock listed in the above Outstanding Equity Awards at
Year-End for 2017 Table, generally subject to the named executive
officer’s continued employment through such date. The
restricted stock granted to Mr. Drexler would vest in full upon a
termination of his employment or a change in control. The
restricted stock granted to Mr. Casutto would vest in connection
with a termination of Mr. Casutto’s employment under certain
circumstances, as described under “Narrative Disclosure to
Summary Compensation Table” above.
|
Vesting Date
|
|
|
1/1/2018
|
350,000
|
—
|
5/23/2018
|
—
|
10,000
|
12/31/2018
|
—
|
30,000
|
5/23/2019
|
—
|
10,000
|
(2)
|
The market value of the restricted stock represents the product of
the closing price of a share of our common stock as of
December 29, 2017 (the last trading day of the year), which
was $0.65, and the number of shares of restricted stock held by the
named executive officer on December 31, 2017.
|
(3)
|
The stock options granted to Mr. Drexler vest in equal quarterly
installments over the two-year period commencing on the date of
grant, generally subject to Mr.
Drexler’s continued employment. The stock options granted to
Mr. Drexler vested in full on February 22,
2018.
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth information with respect to the
beneficial ownership of shares of our common stock by (i) each
current director, (ii) each named executive officer, and
(iii) each person who we know beneficially owns more than 5%
of our common stock as of October 22, 2018.
We have determined beneficial ownership in accordance with the
rules of the SEC. Except as indicated by the footnotes below, we
believe, based on the information furnished to us, that the persons
and entities named in the table below have sole voting and
investment power with respect to all shares of common stock that
they beneficially own, subject to applicable community property
laws.
|
Shares Beneficially Owned
|
|
|
Name of Beneficial
Owner
|
|
|
Named
Executive Officers:
|
|
|
Ryan
Drexler
|
18,516,023
|
58.7%
|
Brian
Casutto
|
125,000
|
*
|
Non-Employee
Directors:
|
|
|
William
Bush
|
254,086
|
*
|
John J.
Desmond
|
230,214
|
*
|
Officers and
Directors as a Group (four persons):
|
18,794,210
|
60.7%
|
*
|
Represents
less than one percent.
|
(1)
|
This
column lists beneficial ownership of voting securities as
calculated under SEC rules. Otherwise, except to the extent noted
below, each director, named executive officer or entity has sole
voting and investment power over the shares reported. Standard
brokerage accounts may include nonnegotiable provisions regarding
set-offs or similar rights.
|
(2)
|
Percent of total voting power represents voting power with respect
to 15,314,667 shares of common stock outstanding as of October 22,
2018, plus 16,216,216 shares of common stock as if the conversion
option of the outstanding convertible debt was exercised and
options to purchase common shares 137,262 shares (31,996,734 common
shares) were also exercised.
|
Beneficial Owners of More than Five Percent
The
following table shows the number of shares of our common stock, as
of October 22, 2018, held by persons known to us to beneficially
own more than five percent of our outstanding common
stock.
|
Shares Beneficially Owned
|
|
|
|
|
|
Wynnefield Capital
(3)
|
1,671,305
|
10.8%
|
Ryan
Drexler
|
18,516,023
|
58.7%
|
Amerop Holdings,
Inc. (4)
|
2,927,677
|
19.1%
|
(1)
|
This
column lists beneficial ownership of voting securities as
calculated under SEC rules. Otherwise, except to the extent noted
below, each director, named executive officer or entity has sole
voting and investment power over the shares reported. Standard
brokerage accounts may include nonnegotiable provisions regarding
set-offs or similar rights.
|
(2)
|
Percent
of total voting power represents voting power with respect to
15,314,667 shares of common stock outstanding as of October
22, 2018. To compute the
percentage of outstanding shares of common stock held by each
person and unless otherwise noted, any share of common stock which
such person has the right to acquire pursuant to the exercise of
stock options exercisable within 60 days of October 22, 2018 or
upon conversion of convertible debt is deemed to be outstanding,
but is not deemed to be outstanding for the purpose of computing
the percentage ownership of any other person.
|
(3)
|
Joshua Landes and Nelson Obus may be deemed to hold an indirect
beneficial interest in these shares, which are directly
beneficially owned by Wynnefield Partners Small Cap Value, L.P.,
Wynnefield Partners Small Cap Value, L.P. I, Wynnefield Small Cap
Value Offshore Fund and Wynnefield Capital, Inc. Profit Sharing
Plan because they are co-managing members of Wynnefield Capital
Management, LLC and principal executive officers of Wynnefield
Capital, Inc. The principal place of business for Wynnefield
Capital is 450 Seventh Avenue, Suite 509, New York, New York 10123.
This information is based on a Schedule 13D/A filed on October 18,
2018 with the SEC.
|
(4)
|
Amerop Holdings, Inc. and Leonard P. Wessell III may be deemed to
hold an indirect beneficial interest to 1,463,839 of these shares.
White Winston Select Asset Funds, LLC, Todd M. Enright, Mark
Blundell, Donald Feagan, and Robert Mahoney may be deemed to hold
an indirect beneficial interest in these shares. White Winston
Select Asset Fund Series Fund MP-18, LLC reported sole voting power
with respect to 2,927,677 shares. The address of White Winston
Select Asset Funds Series Fund MP-18, LLC is 265 Franklin St.,
Suite 1702, Boston, MA 02110. This information is based on a Schedule 13D filed
on August 24, 2018 with the SEC.
|
EQUITY COMPENSATION PLAN INFORMATION
In
2015, we adopted the MusclePharm Corporation 2015 Incentive
Compensation Plan (the “2015 Plan”). The 2015 Plan was
approved by our stockholders and replaced our 2010 Equity Incentive
Plan. The following table sets forth the number and
weighted-average exercise price of securities to be issued upon
exercise of outstanding options, warrants and rights, and the
number of securities remaining available for future issuance under
all of our equity compensation plans, as of December 31,
2017:
|
Number of
securities to be issued uponexercise 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:
|
|
|
|
2015 Incentive
Compensation Plan
|
331,584
|
$2.10
|
1,374,519
|
|
|
|
|
Total
|
331,584
|
$2.10
|
1,374,519
|
AUDIT COMMITTEE REPORT
The Audit Committee of the Board of Directors (the “Audit
Committee”) has furnished this report concerning the
independent audit of the Company’s financial statements. Each
member of the Audit Committee meets the enhanced independence
standards established by the Sarbanes-Oxley Act of 2002 and
rulemaking of the Securities and Exchange Commission (the
“SEC”) and the Nasdaq Stock Market
regulations. A copy of the Audit Committee Charter is available on
the Company’s website at
ir.musclepharmcorp.com/governance-documents.
The Audit Committee’s responsibilities include assisting the
Board of Directors regarding the oversight of the integrity of the
Company’s financial statements, the Company’s
compliance with legal and regulatory requirements, the Independent
Registered Public Accounting Firm’s qualifications and
independence, and the performance of the Company’s
Independent Registered Public Accounting Firm.
In fulfilling its oversight responsibilities, the Audit Committee
reviewed and discussed the Company’s financial statements for
the year ended December 31, 2017 with the Company’s
management and Plante & Moran,PLLC, the Company’s
Independent Registered Public Accounting Firm. In addition, the
Audit Committee has discussed with Plante & Moran,PLLC, with
and without management present, their evaluation of the
Company’s internal accounting controls and overall quality of
the Company’s financial reporting. The Audit Committee also
discussed with Plante & Moran, PLLC the matters required to be
discussed by AICPA, Professional Standards, Vol. 1, AU
Section 380 (Communication with Audit Committees), as modified
or supplemented. The Audit Committee also received the written
disclosures and the letter from Plante & Moran, PLLC required
by the Public Company Accounting Oversight Board Rule 3526
(Communication with Audit Committees Concerning Independence) and
the Audit Committee discussed with Plante & Moran, PLLC the
independence of Plante & Moran, PLLC from the Company and the
Company’s management.
Based on the Audit Committee’s review and discussions noted
above, the Audit Committee recommended to the Board of Directors,
and the Board of Directors approved, that the audited financial
statements be included in the Company’s Annual Report on Form
10-K for the year ended December 31, 2017 for filing with
the Securities and Exchange Commission.
The Audit Committee and the Board of Directors also have
recommended, subject to stockholder approval, the selection of
Plante & Moran, PLLC as the Company’s Independent
Registered Public Accounting Firm for the year ending December 31,
2018.
RELATED PARTY TRANSACTIONS
Related-Party Notes Payable
On
November 3, 2017, we entered into a refinancing transaction (the
“Refinancing”) with Mr. Ryan Drexler, the
Company’s Chairman of the Board of Directors, Chief Executive
Officer and President. The refinancing was overseen and approved by
a Special Committee of the Board of Directors, comprised of John J.
Desmond and William Bush, each of whom is an independent member of
our Board of Directors. As part of the Refinancing, we issued to
Mr. Drexler an amended and restated convertible secured promissory
note (the “Refinanced Convertible Note”) in the
original principal amount of $18,000,000, which amends and restates
(i) a convertible secured promissory note dated as of December 7,
2015, and amended as of January 14, 2017, in the original principal
amount of $6,000,000 with an interest rate of 8% prior to the
amendment and 10% following the amendment (the “2015
Convertible Note”), (ii) a convertible secured promissory
note dated as of November 8, 2016, in the original principal amount
of $11,000,000 with an interest rate of 10% (the “2016
Convertible Note”) , and (iii) a secured demand promissory
note dated as of July 27, 2017, in the original principal amount of
$1,000,000 with an interest rate of 15% (the “2017
Note”, and together with the 2015 Convertible Note and the
2016 Convertible Note, collectively, the “Prior
Notes”). The due date of the 2015 Convertible Note and the
2016 Convertible Note was November 8, 2017. The 2017 Note was due
on demand.
2017 Refinanced Convertible Note
The $18
million Refinanced Convertible Note bears interest at the rate of
12% per annum. Interest payments are due on the last day of each
quarter. At our option (as determined by its independent
directors), we may repay up to one sixth of any interest payment by
either adding such amount to the principal amount of the note or by
converting such interest amount into an equivalent amount our
common stock. Any interest not paid when due shall be capitalized
and added to the principal amount of the Refinanced Convertible
Note and bear interest on the applicable interest payment date
along with all other unpaid principal, capitalized interest, and
other capitalized obligations.
Both
the principal and the interest under the Refinanced Convertible
Note are due on December 31, 2019, unless converted
earlier.
Mr.
Drexler may convert the outstanding principal and accrued interest
into shares of our common stock at a conversion price of $1.11 per
share at any time. We may prepay the Refinanced Convertible Note by
giving Mr. Drexler between 15 and 60 days’ notice depending
upon the specific circumstances, subject to Mr. Drexler’s
conversion right.
The
Refinanced Convertible Note contains customary events of default,
including, among others, the failure by us to make a payment of
principal or interest when due. Following an event of default,
interest will accrue at the rate of 14% per annum. In addition,
following an event of default, any conversion, redemption, payment
or prepayment of the Refinanced Convertible Note will be at a
premium of 105%. The Refinanced Convertible Note also contains
customary restrictions on the ability of us to, among other things,
grant liens or incur indebtedness other than certain obligations
incurred in the ordinary course of business. The restrictions are
also subject to certain additional qualifications and carveouts, as
set forth in the Refinanced Convertible Note. The Refinanced
Convertible Note is subordinated to certain other indebtedness of
us, as described below.
As part
of the Refinancing, we and Mr. Drexler entered into a restructuring
agreement (the “Restructuring Agreement”) pursuant to
which the parties agreed to enter into the Refinanced Convertible
Note and to amend and restate the security agreement pursuant to
which the Prior Notes were secured by all of the assets and
properties of us and our subsidiaries whether tangible or
intangible, by entering into the Third Amended and Restated
Security Agreement (the “Amended Security Agreement”).
Pursuant to the Restructuring Agreement, we agreed to pay, on the
effective date of the Refinancing, all outstanding interest on the
Prior Notes through November 8, 2017 and certain fees and expenses
incurred by Mr. Drexler in connection with the
Restructuring.
In
connection with the refinancing, the Company recorded a debt
discount of $1.2 million. The debt discount is equal to the change
in the fair value of the conversion option between the Refinanced
Convertible Note and the Prior Notes. The fair value of the
conversion option was determined a Monte Carlo simulation and the
model of stock price behavior known as GBM which simulates a future
period as a random step from a previous period. The Company engaged
a third-party valuation firm to perform this complex
valuation.
In
addition, the Refinanced Convertible Note contains two embedded
derivatives for default interest and an event of default put. Due
to the unlikely event of default, the embedded derivatives have a
de minimis value as of December 31, 2017.
For the years ended December 31, 2017 and 2016, interest expense
related to the related party notes was $2.4 million and $0.7
million, respectively. During the years ended December 31, 2017 and
2016, $2.2 million and $0.5 million, respectively, in interest was
paid to Mr. Drexler. For the year ended December 31, 2016, in
connection with issuing the Prior Notes, the Company recorded a
beneficial conversion feature of $601,000 as a debt discount which
was amortized over the original term of the debt using the
effective interest method.
Review, Approval or
Ratification of Transactions with Related
Parties
We
adopted a written related person transactions policy that our
executive officers, directors, nominees for election as a director,
beneficial owners of more than 5% of our common stock, and any
members of the immediate family of and any entity affiliated with
any of the foregoing persons, are not permitted to enter into a
material related person transaction with us without the review and
approval of our Audit Committee, or a committee composed solely of
independent directors in the event it is inappropriate for our
Audit Committee to review such transaction due to a conflict of
interest. The policy provides that any request for us to enter into
a transaction with an executive officer, director, nominee for
election as a director, beneficial owner of more than 5% of our
common stock or with any of their immediate family members or
affiliates, in which the amount involved exceeds $120,000 will be
presented to our Audit Committee for review, consideration and
approval. In approving or rejecting any such proposal, we expect
that our Audit Committee will consider the relevant facts and
circumstances available and deemed relevant to the Audit Committee,
including, but not limited to, whether the transaction is on terms
no less favorable than terms generally available to an unaffiliated
third party under the same or similar circumstances and the extent
of the related persons interest in the transaction.
Although
we have not always had a written policy for the review and approval
of transactions with related persons, our Board of Directors has
historically reviewed and approved any transaction where a director
or officer had a financial interest, including all of the
transactions described above. Prior to approving such a
transaction, the material facts as to a director’s or
officer’s relationship or interest as to the agreement or
transaction were disclosed to our Board of Directors. Our Board of
Directors would take this information into account when evaluating
the transaction and in determining whether such transaction was
fair to us and in the best interest of all of our stockholders.
Section 16(a) Beneficial Ownership Reporting
Compliance
Section 16(a) of the Exchange Act, requires our directors and
named executive officers, and persons who beneficially own more
than 10% of our common stock, to file initial reports of ownership
and reports of changes in ownership of our common stock and our
other equity securities with the SEC. As a practical matter, we
assist our directors and officers by monitoring transactions and
completing and filing Section 16 reports on their
behalf. During 2017, our named
executive officers and directors filed the required reports under
Section 16(a) of the Exchange Act as
follows:
|
|
|
|
Ryan
Drexler
|
12/08/2016
|
|
200,000
|
Ryan
Drexler
|
1/01/2017
|
|
350,000
|
Michael
Doran
|
4/21/2017
|
—
|
10,081
|
William
J. Bush
|
4/21/2017
|
|
10,081
|
William
J. Bush
|
7/24/2017
|
|
53,476
|
John
J. Desmond
|
7/24/2017
|
|
80,214
|
PROPOSAL 1
ELECTION OF DIRECTORS
General
The Board of Directors has nominated the four (4) individuals
identified under “Director Nominees” below for election
as directors, all of whom are currently directors of the Company.
Each of the nominees has agreed to be named in this proxy statement
and to serve as a director if elected. Our Board of Directors is
currently comprised of four (4) members. Directors are elected
at each annual meeting and hold office until their successors are
duly elected and qualified at the next annual meeting. In the
absence of instructions to the contrary, the persons named as proxy
holders in the accompanying proxy intend to vote in favor of the
election of the four (4) nominees designated below to serve
until the 2018 Annual Meeting of Stockholders and until their
respective successors shall have been duly elected and
qualified.
Director Nominees
The following table sets forth certain information concerning the
nominees for directors of the Company as of October 22,
2018.
Name
|
|
Age
|
|
DirectorSince
|
|
Position with the Company
|
Ryan
Drexler
|
|
47
|
|
2015
|
|
Chairman of the Board, Chief Executive Officer and
President
|
Brian
Casutto
|
|
47
|
|
2017
|
|
Executive Vice President of Sales and Operations and
Director
|
William
Bush
|
|
53
|
|
2015
|
|
Director
|
John
J. Desmond
|
|
68
|
|
2017
|
|
Director
|
Required Vote
The election of the directors of the Company requires the
affirmative vote of the majority of the votes cast by stockholders,
who are entitled to vote, present in person or represented by Proxy
at the Annual Meeting.
THE BOARD RECOMMENDS A VOTE “FOR” THE ELECTION OF EACH
OF THE DIRECTOR NOMINEES
PROPOSAL 2
RATIFICATION OF APPOINTMENT OF EXTERNAL AUDITORS
The Audit Committee has selected Plante & Moran,PLLC, an
independent registered public accounting firm, to audit the
consolidated financial statements of MusclePharm Corporation for
the year ending December 31, 2018 and recommends that stockholders
vote for ratification of such appointment. Although we are not
required to submit to a vote of the stockholders the ratification
of the appointment of Plante & Moran,PLLC, the Company, the
Board and the Audit Committee, as a matter of good corporate
governance, have determined to ask the stockholders to ratify the
appointment. If the appointment of Plante & Moran, PLLC is not
ratified, the Audit Committee will take the vote under advisement
in evaluating whether to retain Plante &
Moran,PLLC.
Representatives of Plante & Moran, PLLC attend meetings of the
Audit Committee of the Board including executive sessions of the
Audit Committee at which no members of MusclePharm’s
management are present. Plante & Moran, PLLC has audited the
Company’s financial statements for each year since the year
ended December 31, 2013. Representatives of Plante &
Moran, PLLC are not expected to be present at the Annual Meeting.
However, if they are present they will have an opportunity to make
a statement if they desire to do so, and if they are present they
would be expected to be available to respond to appropriate
questions from stockholders.
The
following table shows fees and expenses that we paid (or accrued)
for professional services rendered by Plante & Moran, PLLC for
the years ended December 31, 2017 and 2016:
|
|
|
Audit fees
(1)
|
$245,000
|
$239,000
|
Audit-related fees
(2)
|
62,000
|
60,000
|
All other fees
(3)
|
17,000
|
25,000
|
Total
|
$324,000
|
$324,000
|
(1)
|
Represents
the aggregate fees billed for the audit of the Company’s
financial statements.
|
(2)
|
Represents
the aggregate fees billed for assurance and related services,
including the fees for the Quarterly reviews, that are reasonably
related to the audit or review of the Company’s financial
statements and are not reported under audit fees.
|
(3)
|
Represents
the aggregate fees billed for all products and services provided
that are not included under audit fees, audit-related fees or tax
fees. These services included a review of a Registration Statement
on Form S-8 and related consent procedures, review of the agreement
to sell our wholly-owned subsidiary, BioZone Laboratories, Inc. and
various Current Reports on Form 8-K.
|
Audit Committee Pre-Approval Policies
Before an Independent Registered Public Accounting Firm is engaged
by us or our subsidiaries to render audit or non-audit services,
the Audit Committee shall pre-approve the engagement. Audit
Committee pre-approval of audit and non-audit services will not be
required if the engagement for the services is entered into
pursuant to pre-approval policies and procedures established by the
Audit Committee regarding our engagement of the Independent
Registered Public Accounting Firm, provided the policies and
procedures are detailed as to the particular service, the Audit
Committee is informed of each service provided and such policies
and procedures do not include delegation of the Audit
Committee’s responsibilities under the Exchange Act to our
management. The Audit Committee may delegate to one or more
designated members of the Audit Committee the authority to grant
pre-approvals, provided such approvals are presented to the Audit
Committee at a subsequent meeting. If the Audit Committee elects to
establish pre-approval policies and procedures regarding non-audit
services, the Audit Committee must be informed of each non-audit
service provided by the Independent Registered Public Accounting
Firm. Audit Committee pre-approval of non-audit services (other
than review and attest services) also will not be required if such
services fall within available exceptions established by the SEC.
All non-audit services provided by Plante & Moran, PLLC during
years 2015 and 2016 were pre-approved by the Audit Committee in
accordance with the pre-approval policy described
above.
Required Vote
The affirmative vote of the holders of a majority of the
outstanding shares of common stock present or represented by proxy
and entitled to vote at the Annual Meeting will be required to
ratify the appointment of Plante & Moran,PLLC.
Recommendation of the Board of Directors
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE
RATIFICATION OF THE APPOINTMENT OF Plante & Moran, PLLC AS THE
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM OF THE COMPANY FOR
THE YEAR ENDING DECEMBER 31, 2018.
PROPOSAL 3
ADVISORY VOTE ON EXECUTIVE COMPENSATION
The Dodd-Frank Wall Street Reform and Consumer Protection Act of
2010 (Dodd-Frank Act) enables our stockholders to vote to approve,
on an advisory (non-binding) basis, the compensation of our named
executive officers as disclosed in this proxy statement in
accordance with SEC rules.
Our executive compensation program is designed to attract and
retain talented and qualified senior executives to manage and lead
our Company and to motivate them to pursue and meet our corporate
objectives. Under this program, our named executive officers are
rewarded for individual and collective contributions to our success
consistent with our “pay for performance” orientation.
Furthermore, the executive compensation program is aligned with the
nature and dynamics of our business, which focuses management on
achieving the Company’s annual and long-term business
strategies and objectives.
Our Compensation Committee regularly reviews our executive
compensation program to ensure that it achieves the desired goals
of emphasizing long-term value creation and aligning the interests
of management and stockholders through the use of equity-based
awards. We are asking our stockholders to indicate their support
for our named executive officer compensation as described in this
proxy statement. This proposal, commonly known as a
“say-on-pay” proposal, gives our stockholders the
opportunity to express their views on our named executive
officers’ compensation. This vote is not intended to address
any specific item of compensation, but rather the overall
compensation of our named executive officers and the philosophy,
policies and practices described in this proxy statement.
Accordingly, we ask our stockholders to vote “FOR” the
following resolution at the Annual Meeting:
“RESOLVED, that
the Company’s stockholders approve, on an advisory basis, the
compensation of the named executive officers, as disclosed in the
Company’s proxy statement for the 2017 Annual Meeting of
Stockholders pursuant to the compensation disclosure rules of the
SEC, including the Compensation Discussion and Analysis, the
Summary Compensation Table and the other related tables and
disclosure.”
Required Vote
The affirmative vote of the holders of a majority of the
outstanding shares of common stock present or represented by proxy
and entitled to vote at the Annual Meeting will be required to
approve the compensation of the named executive officers as
disclosed in this proxy statement.
The “say-on-pay” vote is advisory, and therefore not
binding on the Company, the Compensation Committee or our Board of
Directors. Although the vote is non-binding, the Compensation
Committee and the Board of Directors value the opinions of the
stockholders and will consider the outcome of the vote when making
future compensation decisions.
Recommendation of the Board of Directors
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE
APPROVAL OF THE COMPENSATION OF THE NAMED EXECUTIVE OFFICERS, AS
DESCRIBED IN THIS PROXY STATEMENT PURSUANT TO THE COMPENSATION
DISCLOSURE RULES OF THE SEC.
HOUSEHOLDING OF PROXY MATERIALS
We have adopted a procedure approved by the SEC known as
“householding.” This procedure allows multiple
stockholders residing at the same address the convenience of
receiving a single copy of the Notice. This allows us to save money
by reducing the number of documents we must print and mail, and
helps protect the environment as well. Householding is available to
both registered stockholders (i.e., those stockholders with
certificates registered in their name) and streetname holders
(i.e., those stockholders who hold their shares through a
brokerage). The Company will
promptly deliver, upon oral or written request, a separate copy of
the Notice to any stockholder residing at an address to which only
one copy was mailed. Requests for additional copies should be
directed to Investor Relations.
Registered Stockholders
If you are a registered stockholder that has requested to receive
proxy materials by mail and you have consented to our mailing of
proxy materials and other stockholder information only to one
account in your household, as identified by you, we will deliver or
mail a single copy of our Annual Report on Form 10-K and proxy
statement for all registered stockholders residing at the same
address. Your consent will be perpetual unless you revoke it, which
you may do at any time by contacting the Householding Department of
Broadridge Financial Solutions, Inc., at 51 Mercedes Way, Edgewood,
NY 11717, or by calling 1-800-542-1061. If you revoke your consent,
we will begin sending you individual copies of future mailings of
these documents within 30 days after we receive your revocation
notice. If you received a householded mailing this year, and you
would like to receive additional copies of our Annual Report on
Form 10-K and proxy statement mailed to you, please send a e-mail
request to Investor Relations at investors@musclepharm.com,
or write to c/o Investor Relations, MusclePharm Corporation, 4400
Vanowen St., Burbank, CA 91505 and we will promptly deliver the
requested copy.
Registered stockholders that have requested to receive proxy
materials by mail and have not consented to householding will
continue to receive copies of our Annual Reports on Form 10-K and
our proxy statements for each registered stockholder residing at
the same address. As a registered stockholder, you may elect to
participate in householding and receive only a single copy of the
Annual Reports on Form 10-K and proxy statements for all registered
stockholders residing at the same address by contacting Broadridge
as outlined above.
Streetname Holders
Stockholders who hold their shares through a brokerage may elect to
participate in householding or revoke their consent to participate
in householding by contacting their respective
brokers.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Proxy Statement, as well as other written reports and oral
statements that we make from time to time, includes statements that
express our opinions, expectations, beliefs, plans, objectives,
assumptions or projections regarding future events or future
results and therefore are, or may be deemed to be,
“forward-looking statements” within the meaning of the
Private Securities Litigation Reform Act of 1995 (the
“Act”). The words “ongoing,”
“believes,” “expects,” “may,”
“will” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking
statements contain these identifying words. Forward-looking
statements are not guarantees that the future results, plans,
intentions or expectations expressed or implied will be achieved.
Matters subject to forward-looking statements involve known and
unknown risks and uncertainties, including regulatory, competitive
and other factors, which may cause actual financial or operating
results or the timing of events to be materially different than
those expressed or implied by forward-looking statements. Important
factors that could cause or contribute to such differences include,
but are not limited to: inability to raise capital with agreeable
terms or at all, resolve litigation, failure of our manufacturers
to meet our production needs; failure to successfully invest in or
launch new product introductions; general economic conditions in
the markets in which we operate, including financial market
conditions, and the other factors set forth in the “Risk
Factors” section of our Annual Report on Form 10-K for the
year ended December 31, 2017 and in other public filings with
the SEC. Given these risks and uncertainties, you are cautioned not
to place undue reliance on these forward-looking statements, which
speak only as of the date hereof. We undertake no obligation to
update any forward-looking statements or to publicly announce the
results of any revisions to any of those statements to reflect
future events or developments.
OTHER MATTERS
We are not aware of any matters that may come before the meeting
other than those referred to in the Notice of Annual Meeting of
Stockholders. If any other matter shall properly come before the
Annual Meeting, however, the persons named in the accompanying
proxy intend to vote all proxies in accordance with their best
judgment. Copies of our Annual
Report on Form 10-K for the year ended December 31, 2017, as
filed with the SEC, are available free of charge on our website at
www.musclepharmcorp.com or you can request a copy free of charge by
e-mail request to Investor Relations to investors@musclepharm.com.
Please include your contact information with the
request.
Burbank, California
October 26, 2018
Important Notice Regarding the Availability of Proxy Materials for
the Annual Meeting:
The Notice and Proxy Statement and Annual Report are available
at www.musclepharm.com.
PROXY
|
|
ANNUAL MEETING OF STOCKHOLDERS
|
|
PROXY
|
|
|
OF
|
|
|
|
|
MUSCLEPHARM CORPORATION
|
|
|
|
|
December 7, 2018
|
|
|
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF
DIRECTORS
The undersigned hereby appoints Ryan Drexler as proxy, with power
of substitution, to vote all shares of the undersigned at the
annual meeting of stockholders of MusclePharm Corporation to be
held on December 7, 2018 at 11:00 a.m. Pacific time at the 4400
Vanowen St., Burbank, CA 91505, or at any adjournment thereof, upon
the matters set forth in the proxy statement for such meeting, and
in their discretion, on such other business as may properly come
before the meeting.
1.
|
TO ELECT DIRECTORS, EACH TO SERVE SUCH TERM AS SET FORTH IN THE
PROXY STATEMENT OR UNTIL HIS SUCCESSOR HAS BEEN DULY ELECTED AND
QUALIFIED.
|
|
|
|
|
For
|
Against
|
|
Abstain
|
|
|
Ryan Drexler
|
|
☐
|
☐
|
|
☐
|
|
|
John
J. Desmond
|
|
☐
|
☐
|
|
☐
|
|
|
William
J. Bush
|
|
☐
|
☐
|
|
☐
|
|
|
Brian
Casutto
|
|
☐
|
☐
|
|
☐
|
2.
|
TO RATIFY THE APPOINTMENT OF Plante & Moran, PLLC AS THE
INDEPENDENT AUDITORS.
|
|
|
|
|
|
|
|
|
|
☐ FOR
|
|
☐ AGAINST
|
|
☐ ABSTAIN
|
3.
|
TO HOLD AN ADVISORY VOTE ON EXECUTIVE COMPENSATION.
|
|
|
|
|
|
|
|
|
|
☐ FOR
|
|
☐ AGAINST
|
|
☐ ABSTAIN
|
|
|
|
|
|
|
|
4.
|
TO TRANSACT SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE
MEETING OR ANY ADJORNMENT OR POSTPONEMENT THEREOF.
|
IF NO CONTRARY SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED FOR
PROPOSALS 1, 2, & 3. IN THEIR DISCRETION, THE PROXIES ARE
AUTHORIZED TO TRANSACT ANY OTHER BUSINESS THAT MAY PROPERLY COME
BEFORE THE MEETING. PLEASE MARK, SIGN AND RETURN THIS PROXY CARD
PROMPTLY USING THE ENCLOSED ENVELOPE.
|
|
|
|
|
Dated:
|
|
|
|
, 2018
|
|
|
|
Signature
|
|
|
|
|
|
|
|
|
Signature if held jointly
|
|
|
|
|
NOTE: When shares are held by joint tenants,
both should sign. Persons signing as executor, administrator,
trustee, etc., should so indicate. Please sign exactly as the name
appears on the proxy.
|
|
|