Commitments and Contingencies | Note 9: Commitments and Contingencies Operating Leases The Company leases office and warehouse facilities under operating leases which expire at various dates through 2029. The amounts reflected in the table below are for the aggregate future minimum lease payments under non-cancelable facility operating leases. Under lease agreements that contain escalating rent provisions, lease expense is recorded on a straight-line basis over the lease term. Rent expense for the three months ended March 31, 2016 and 2015 amounted to $346,000 and $383,000. As of March 31, 2016, future minimum lease payments are as follows (in thousands): (1) Year Ending December 31, 2016 $ 800 2017 856 2018 869 2019 708 2020 431 2021 292 Thereafter 2,089 Total minimum lease payments $ 6,045 (1) The amounts in the table above exclude $0.5 million in operating lease liabilities resulting from the restructuring plan expensed through March 31, 2016 (see Note 8). Capital Leases In December 2014, the Company entered into a capital lease agreement providing for approximately $1.8 million in credit to lease up to 50 vehicles as part of a fleet lease program. As of March 31, 2016, the Company leased 15 vehicles under the capital lease and the original costs and accumulated depreciation of leased assets were $481,000 and $86,000, respectively, which are included in property and equipment in the consolidated balance sheets. The Company also leases manufacturing and warehouse equipment under capital leases, which expire at various dates through February 2020. As of March 31, 2016 and December 31, 2015, short-term capital lease liabilities of $157,000 and $186,000, respectively are included as a component of current liabilities, and the long-term capital lease liabilities of $227,000 and $330,000, respectively are included as a component of long-term liabilities in the consolidated balance sheets. As of March 31, 2016, the Company’s future minimum lease payments under capital lease agreements are as follows (in thousands): Year Ending December 31, 2016 $ 133 2017 135 2018 99 2019 45 2020 1 Total minimum lease payments 413 Less amounts representing interest (29 ) Present value of minimum lease payments $ 384 Contingencies In the normal course of business or otherwise, the Company may become involved in legal proceedings. The Company will accrue a liability for such matters when it is probable that a liability has been incurred and the amount can be reasonably estimated. When only a range of possible loss can be established, the most probable amount in the range is accrued. If no amount within this range is a better estimate than any other amount within the range, the minimum amount in the range is accrued. The accrual for a litigation loss contingency might include, for example, estimates of potential damages, outside legal fees and other directly related costs expected to be incurred. As of March 31, 2016 and December 31, 2015, the Company was not involved in any material legal proceedings, with the exception of the lawsuit with a former executive, as described below. Third-Party Manufacturer Dispute The Company is engaged in a dispute with Capstone concerning amounts allegedly owed under the Manufacturing Agreement. Capstone claims that it is owed approximately $22.0 million in outstanding payables, of which $20.8 million was included in the Company’s accounts payable balance as of March 31, 2016. The companies are working to reconcile the $1.2M variance which relates to invoices not received by the Company as well as questions about shipping and receiving documentation to support potentially open invoices as claimed by Capstone. The Company disputes Capstone’s claim, and claims that Capstone owes the Company at least $13.5 million in losses caused by, among other things, Capstone’s failure to timely manufacture and supply the Company’s products. On February 12, 2016, Capstone requested a mediation with the American Arbitration Association. As of the date of this report, the mediation is scheduled for May 2016 in New York. Supplier Complaint On January 15, 2016, ThermoLife International LLC (“ThermoLife”), a supplier of nitrates to MusclePharm, filed a complaint against the Company in Arizona state court. In its complaint, ThermoLife alleges that the Company failed to meet minimum purchase requirements contained in the parties’ supply agreement. On March 14, 2016, the Company filed an answer to ThermoLife’s complaint, denying the allegations contained in the complaint, and filed a counterclaim alleging that ThermoLife breached its express warranty to MusclePharm because ThermoLife’s products were defective and could not be incorporated into the Company’s products. The action is pending. Former Executive Lawsuit On December 30, 2015, the Company accepted notice by Mr. Richard Estalella (“Estalella”) to terminate his employment as the Company’s President. Although Estalella sought to terminate his employment with the Company for “Good Reason,” as defined in Estalella’s employment agreement with the Company (the “Employment Agreement”), the Company advised Estalella that it deemed his resignation to be without Good Reason. On February 3, 2016, Estalella filed a complaint in Colorado state court against the Company and Ryan Drexler, Interim Chief Executive Officer, Interim President and Chairman of the Board of Directors, alleging, among other things, that the Company breached the Employment Agreement, and seeking certain equitable relief and unspecified damages. The Company believes Estalella’s claims are without merit. Estalella remains a member of the Company’s Board of Directors. As of the date of this report, the Company has evaluated the potential outcome of this lawsuit and recorded the liability consistent with our policy. Endorser Dispute The Company is engaged in a dispute with ETW Corp. (“ETW”) concerning the validity of, and payments allegedly owed under, an endorsement agreement with professional golfer Tiger Woods, and amendments thereto (as amended, the “Endorsement Agreement”). ETW claims that the Company owes it approximately $7.0 million under the Endorsement Agreement. The Company has the entire $7.0 million accrued for as of March 31, 2016. The Company, however, believes that it does not owe any amounts under the Endorsement Agreement, and has demanded the return of payments previously made, as a result of, among other things, certain misrepresentations and omissions made by ETW and its representatives. The parties have agreed to mediate the dispute. The mediation is scheduled for May 2016 in New York. Shareholder Derivative Complaint On October 27, 2015, Brian D. Gartner, derivatively and on behalf of MusclePharm Corporation, filed a verified shareholder derivative complaint in the 8th District Court, State of Nevada, Clark County (No. A-15-726810-B) alleging, among other things, breaches of fiduciary duty as members of the Board of Directors and/or executive officers of the Company against Brad Pyatt, Lawrence S. Meer, Donald W. Prosser, Richard Estalella, Jeremy R. Deluca, Michael J. Doron, Cory Gregory, L. Gary Davis, James J. Greenwell, John H. Bluher and Daniel J. McClory. Mr. Gartner alleges a series of accounting and disclosure failures resulted in the filing of materially false and misleading filings with the SEC from 2010 through July 2014, resulting in settlement with the SEC requiring payment of $700,000 of civil penalties. Mr. Gartner seeks various remedies, including interpretation of bylaws provisions, permanent injunctive relief, damages against the defendants for breaches of their fiduciary duty, corporate governance changes to ensure the Company maintain proper internal controls and SEC reporting procedures, as well as costs and reasonable attorneys’ fees, accountants’ and experts’ fees, costs and expenses. The individual defendants seek removal of the action to federal court and a scheduling stipulation is contemplated. The case continues in Nevada District Court with the most recent action being the filing of affidavits of service by the plaintiff. SEC Settlement In September 2015, the Company’s proposal regarding final settlement of an ongoing SEC investigation was accepted, and all aspects of the investigation related to the Company were terminated. The Company, without admitting or denying the SEC claims, agreed to a payment of $700,000 which was accrued for in 2014 and paid during 2015 and 2016. The Company also agreed to the appointment of an independent consultant, mutually acceptable to the SEC and the Company, for a 12-month period to monitor the Company’s reporting practices and internal controls. Insurance Carrier Lawsuit On February 12, 2015, the Company filed a complaint in the District Court, City and County of Denver, Colorado against Liberty Insurance Underwriters, Inc. (“Liberty”) claiming wrongful and unreasonable denial of coverage for the cost and expenses that the Company incurred in connection with the SEC investigation and related matters under the Company’s Directors and Officers insurance policies. Sponsorship and Endorsement Contract Liabilities The Company has various non-cancelable endorsement and sponsorship agreements with terms expiring through 2022. The total value of future contractual payments as of March 31, 2016 are as follows (in thousands): Year Ending December 31, Remainder of 2016 2017 2018 2019 2020 Thereafter Total Outstanding Payments Endorsement (1) $ 1,898 $ 2,580 $ 2,500 $ 4,167 $ 5,000 $ 6,667 $ 22,812 Sponsorship 3,639 2,294 2,404 985 — — 9,322 Total future payments $ 5,537 $ 4,874 $ 4,904 $ 5,152 $ 5,000 $ 6,667 $ 32,134 (1) The amounts in the table above include $22.5 million in connection with the endorsement agreement with Marine MP, LLC (Arnold Schwarzenegger) that will not be due as the agreement was terminated in May 2016 (see Note 16). |