Condensed Notes to the Unaudited Consolidated Financial Statements
NOTE 1. NATURE OF BUSINESS
GNC Holdings, Inc., a Delaware corporation (“Holdings,” and collectively with its subsidiaries and, unless the context requires otherwise, its and their respective predecessors, the “Company”), is a global health and wellness brand with a diversified, omni-channel business. The Company's assortment of performance and nutritional supplements, vitamins, herbs and greens, health and beauty, food and drink and other general merchandise features innovative private-label products as well as nationally recognized third-party brands, many of which are exclusive to GNC.
The Company's operations consist of purchasing raw materials, formulating and manufacturing products and selling the finished products through its three reportable segments, U.S. and Canada, International, and Manufacturing / Wholesale (refer to Note 12, "Segments" for more information). Corporate retail store operations are located in the United States, Canada, Puerto Rico and Ireland. In addition, the Company offers products on the internet through GNC.com and third-party websites. Franchise locations exist in the United States and approximately 50 other countries. Additionally, the Company licenses the use of its trademarks and trade names.
In February 2019, the Company entered into two joint ventures with Harbin Pharmaceutical Group Co., Ltd ("Harbin") to operate its e-commerce business in China (the "HK JV") and retail business in China (the "China JV"), which will accelerate its presence and maximize the Company's opportunities for growth in the Chinese supplement market. Under the terms of the agreement, the Company contributed its China business and retained 35% equity interest in the HK JV and China JV.
In March 2019, the Company entered into a strategic joint venture with International Vitamin Corporation ("IVC") regarding the Company's manufacturing business (the "Manufacturing JV"), which enables the Company to increase its focus on product innovation while IVC manages manufacturing and integrates with the Company's supply chain thereby driving more efficient usage of capital. Under the terms of the agreement, the Company received $101 million and contributed its Nutra manufacturing and Anderson facility net assets in exchange for an initial 43% equity interest in the Manufacturing JV. During the second quarter of 2019, the Company recognized a $1.8 million working capital purchase price adjustment, which was settled in the third quarter of 2019. Over the next four years, GNC expects to receive an additional $75 million from IVC, adjusted up or down based on the Manufacturing JV's future performance, as IVC’s ownership of the joint venture increases to 100%.
NOTE 2. BASIS OF PRESENTATION
The accompanying unaudited Consolidated Financial Statements, which have been prepared in accordance with the applicable rules of the Securities and Exchange Commission ("SEC"), include all adjustments (of a normal and recurring nature) that management considers necessary to fairly state the Company's results of operations, financial position and cash flows. The December 31, 2018 Consolidated Balance Sheet was derived from audited financial statements, but does not include all disclosures required by accounting principles generally accepted in the United States of America (“U.S. GAAP”). These interim Consolidated Financial Statements should be read in conjunction with the Consolidated Financial Statements and Footnotes included in the Company’s audited financial statements in its Annual Report on Form 10-K for the year ended December 31, 2018, as filed with the SEC on March 13, 2019 (the "2018 10-K"). Interim results are not necessarily indicative of the results that may be expected for the remainder of the year ending December 31, 2019.
Recently Adopted Accounting Pronouncements
Adoption of the New Lease Standard
In February 2016, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") 2016-02, which requires lessees to recognize a right-of-use asset and a lease liability, initially measured at the present value of the lease payments for all leases with a term greater than 12 months. This standard is effective for annual reporting periods, and interim periods therein, beginning after December 15, 2018 and is required to be applied using a modified retrospective approach. In July 2018, the FASB issued ASU 2018-11, which provides companies with the option to apply the new lease standard either at the beginning of the earliest comparative period presented or in the period of adoption. The Company adopted ASU 2016-02 and its related amendments (collectively known as "ASC 842") during the first quarter of fiscal 2019 electing the optional transition relief amendment that allows for a cumulative-effect adjustment in the period of adoption and did not restate prior periods. In transitioning to ASC
842, the Company elected to use the practical expedient package available under the guidance for leases that commenced before the effective date and did not elect to use hindsight. The Company has implemented a new lease management and accounting system and updated its processes and internal controls to comply with the new standard.
The Company leases substantially all of its retail stores in the U.S. and Canada segment, including most of the domestic franchise stores that are leased and subleased to franchisees, its distribution centers in the United States and retail stores in Ireland. In addition, the Company has leased office locations and vehicle and equipment leases to support our store and supply chain operations. All of the Company's leases are classified as operating leases.
The Company determines if a contract contains a lease at inception. The lease liabilities are recognized based on the present value of the future minimum lease payments over the term at the commencement date for leases exceeding 12 months. The lease agreements generally contain lease and non-lease components. Non-lease components primarily include payments for maintenance and utilities. The minimum lease payments include only fixed lease components, as well as any variable rate payments that depend on an index, initially measured using the index at the lease commencement date. Lease terms may include options to renew when it is reasonably certain that the Company will exercise an option. The Company estimates its incremental borrowing rate, which was estimated to approximate the interest rate on a collateralized basis with similar terms and payments for each lease, using a portfolio approach. The right-of-use assets recognized are initially equal to the lease liability, adjusted for any lease payments made on or before the commencement dates and lease incentives.
The Company recognized lease liabilities of $550.2 million on January 1, 2019. A right-of-use asset of $504.2 million was recognized based on the lease liability, adjusted for the reclassification of deferred rent of $53.3 million and prepaid rent of $7.3 million. Additionally, the Company recognized $79.8 million of right-of-use asset impairment charges related to certain of the Company's stores for which it was previously determined that the carrying value of the stores' assets were not recoverable. The right-of-use asset impairment charges were recorded as a reduction to January 1, 2019 (opening day) retained earnings, net of tax of $19.8 million. The new lease standard has no impact on the timing or classification of the Company's cash flows as reported in the Consolidated Statement of Cash Flows.
The lease liabilities for the operating leases are amortized using the effective interest method. The right-of-use asset is amortized by taking the difference between total rent expense recorded on straight-line basis and the lease liability amortization. When the right-of-use asset for an operating lease is impaired, lease expense is no longer recognized on a straight-line basis. For impaired leases, the Company continues to amortize the lease liability using the same effective interest method as before the impairment charge and the right-of-use asset is amortized on a straight-line basis.
Refer to Note 8 "Leases" for additional information.
Recently Issued Accounting Pronouncements
In August 2018, the FASB issued ASU 2018-15, which aligns the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-used software. This standard is effective for public business entities for fiscal years beginning after December 15, 2019, and interim periods within those fiscal years. Early adoption is permitted. The Company does not expect the adoption of the new standard to have a material impact on its Consolidated Financial Statements.
NOTE 3. REVENUE
Revenue is recognized when obligations under the terms of a contract with the customer are satisfied. Generally, this occurs with the transfer of control of products or services. The Company satisfies performance obligations either over time or at a point in time as discussed in further detail below. Revenue is measured as the amount of consideration expected to be received in exchange for transferring goods or providing services. Applicable sales tax collected concurrent with revenue-producing activities is excluded from revenue.
U.S. and Canada Revenue
The following is a summary of revenue disaggregated by major source in the U.S. and Canada segment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
U.S. company-owned product sales: (1)
|
(in thousands)
|
|
Protein
|
$
|
73,103
|
|
|
$
|
76,738
|
|
|
$
|
230,520
|
|
|
$
|
251,480
|
|
|
Performance supplements
|
70,704
|
|
|
68,809
|
|
|
218,565
|
|
|
217,525
|
|
|
Weight management
|
22,279
|
|
|
29,575
|
|
|
82,665
|
|
|
108,048
|
|
|
Vitamins
|
43,107
|
|
|
48,322
|
|
|
135,099
|
|
|
148,188
|
|
|
Herbs / Greens
|
13,939
|
|
|
15,872
|
|
|
45,348
|
|
|
48,975
|
|
|
Wellness
|
41,995
|
|
|
46,245
|
|
|
135,565
|
|
|
143,626
|
|
|
Health / Beauty
|
44,356
|
|
|
43,332
|
|
|
137,279
|
|
|
138,911
|
|
|
Food / Drink
|
23,806
|
|
|
28,325
|
|
|
78,308
|
|
|
82,394
|
|
|
General merchandise
|
5,051
|
|
|
5,637
|
|
|
17,370
|
|
|
18,577
|
|
|
Total U.S. company-owned product sales
|
$
|
338,340
|
|
|
$
|
362,855
|
|
|
$
|
1,080,719
|
|
|
$
|
1,157,724
|
|
|
Wholesale sales to franchisees
|
55,729
|
|
|
58,199
|
|
|
173,855
|
|
|
176,034
|
|
|
Royalties and franchise fees
|
7,592
|
|
|
7,939
|
|
|
24,239
|
|
|
25,219
|
|
|
Sublease income
|
10,508
|
|
|
11,087
|
|
|
31,982
|
|
|
34,485
|
|
|
Cooperative advertising and other franchise support fees
|
4,558
|
|
|
4,739
|
|
|
14,379
|
|
|
16,245
|
|
|
Other (2)
|
28,007
|
|
|
31,700
|
|
|
84,777
|
|
|
96,543
|
|
|
Total U.S. and Canada revenue
|
$
|
444,734
|
|
|
$
|
476,519
|
|
|
$
|
1,409,951
|
|
|
$
|
1,506,250
|
|
|
|
|
|
(1)
|
Includes e-commerce sales.
|
|
|
|
|
(2)
|
Includes revenue primarily related to operations in Canada and the loyalty programs, myGNC Rewards and PRO Access, as further discussed below.
|
International Revenues
The following is a summary of revenue disaggregated by major source in the International reportable segment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
|
(in thousands)
|
|
Wholesale sales to franchisees
|
$
|
22,965
|
|
|
$
|
32,321
|
|
|
$
|
75,421
|
|
|
$
|
81,266
|
|
|
Royalties and franchise fees
|
6,792
|
|
|
7,150
|
|
|
19,111
|
|
|
20,347
|
|
|
Other (1)
|
7,183
|
|
|
11,936
|
|
|
22,779
|
|
|
38,494
|
|
|
Total International revenue
|
$
|
36,940
|
|
|
$
|
51,407
|
|
|
$
|
117,311
|
|
|
$
|
140,107
|
|
|
|
|
|
(1)
|
Includes revenue related to China operations prior to the transfer of the China business to the HK JV and China JV, which was effective February 13, 2019, wholesale sales to the HK JV and China JV, and revenue from company-owned locations in Ireland.
|
Manufacturing / Wholesale Revenue
The following is a summary of revenue disaggregated by major source in the Manufacturing / Wholesale reportable segment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
|
(in thousands)
|
|
Third-party contract manufacturing(1)
|
$
|
—
|
|
|
$
|
31,212
|
|
|
$
|
15,783
|
|
|
$
|
94,514
|
|
|
Intersegment sales(1)
|
—
|
|
|
63,695
|
|
|
35,505
|
|
|
193,596
|
|
|
Wholesale partner sales
|
17,402
|
|
|
21,047
|
|
|
54,792
|
|
|
64,791
|
|
|
Total Manufacturing / Wholesale revenue
|
$
|
17,402
|
|
|
$
|
115,954
|
|
|
$
|
106,080
|
|
|
$
|
352,901
|
|
|
|
|
|
(1)
|
The decrease in third-party contract manufacturing and intersegment sales for the three and nine months ended September 30, 2019 compared to the prior year period is due to the transfer of the Nutra manufacturing business to the newly formed Manufacturing JV effective March 1, 2019.
|
Revenue by Geography
The following is a summary of revenue by geography:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
Total revenues by geographic areas(1):
|
(in thousands)
|
|
United States
|
$
|
477,306
|
|
|
$
|
545,332
|
|
|
$
|
1,526,111
|
|
|
$
|
1,696,887
|
|
|
Foreign
|
21,770
|
|
|
34,853
|
|
|
71,726
|
|
|
108,775
|
|
|
Total revenues
|
$
|
499,076
|
|
|
$
|
580,185
|
|
|
$
|
1,597,837
|
|
|
$
|
1,805,662
|
|
|
|
|
|
(1)
|
Geographic areas are defined based on legal entity jurisdiction.
|
Balances from Contracts with Customers
Contract assets represent amounts related to the Company's contractual right to consideration for completed performance obligations not yet invoiced. As of December 31, 2018, the Company had contract assets of $25.5 million for specialty manufacturing recorded within prepaid and other current assets on the Consolidated Balance Sheet (with a corresponding reduction to inventory at cost). Due to the transfer of the Nutra manufacturing net assets to the Manufacturing JV on March 1, 2019, the Company had no contract assets on the Consolidated Balance Sheet as of September 30, 2019.
Contract liabilities include payments received in advance of performance under the contract, and are realized with the associated revenue recognized under the contract. The Company's PRO Access and loyalty program points are recorded within deferred revenue and other current liabilities on the Consolidated Balance Sheets. Deferred franchise and license fees are recorded within deferred revenue and other current liabilities and other long-term liabilities on the Consolidated Balance Sheets.
The following table presents changes in the Company’s contract liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine months ended September 30, 2019
|
|
|
Balance at Beginning of Period
|
|
Recognition of revenue included in beginning balance
|
|
Contract liability, net of revenue, recognized during the period
|
|
Balance at the End of Period
|
|
|
(in thousands)
|
|
Deferred franchise and license fees
|
$
|
33,464
|
|
|
(7,931
|
)
|
|
3,476
|
|
|
$
|
29,009
|
|
|
PRO Access and loyalty program points
|
24,836
|
|
|
(21,266
|
)
|
|
22,562
|
|
|
26,132
|
|
|
Gift card liability
|
3,416
|
|
|
(1,945
|
)
|
|
324
|
|
|
1,795
|
|
As of September 30, 2019, the Company had deferred franchise fees with unsatisfied performance obligations extending throughout 2029 of $29.0 million, of which approximately $6.3 million is expected to be recognized over the next 12 months. The Company has elected to use the practical expedient allowed under the rules of adoption to not disclose the duration of the remaining unsatisfied performance obligations for contracts with an original expected length of one year or less.
NOTE 4. INVENTORY
The net realizable value of inventory consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2019
|
|
December 31, 2018
|
|
|
(in thousands)
|
|
Finished product ready for sale
|
$
|
394,763
|
|
|
$
|
416,113
|
|
|
Work-in-process, bulk product and raw materials(1)
|
—
|
|
|
46,520
|
|
|
Packaging supplies(1)
|
—
|
|
|
2,939
|
|
|
Inventory
|
$
|
394,763
|
|
|
$
|
465,572
|
|
|
|
|
|
(1)
|
The decrease in work-in-process, bulk product and raw materials and packaging supplies as of September 30, 2019 compared with December 31, 2018 is due to the transfer of the Nutra manufacturing net assets to the Manufacturing JV effective March 1, 2019.
|
NOTE 5. LONG-TERM DEBT / INTEREST EXPENSE
Long-term debt consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30,
2019
|
|
December 31,
2018
|
|
|
(in thousands)
|
|
Tranche B-1 Term Loan
|
$
|
—
|
|
|
$
|
147,289
|
|
|
Tranche B-2 Term Loan (net of $8.5 million and $17.5 million discount)
|
440,009
|
|
|
554,760
|
|
|
FILO Term Loan (net of $8.9 million and $10.9 million discount)
|
266,132
|
|
|
264,086
|
|
|
Unpaid original issuance discount
|
—
|
|
|
11,445
|
|
|
Notes
|
152,944
|
|
|
175,504
|
|
|
Debt issuance costs
|
(499
|
)
|
|
(762
|
)
|
|
Total debt
|
858,586
|
|
|
1,152,322
|
|
|
Less: current debt
|
(152,919
|
)
|
|
(158,756
|
)
|
|
Long-term debt
|
$
|
705,667
|
|
|
$
|
993,566
|
|
On February 28, 2018, the Company amended and restated its Senior Credit Facility (the "Amendment", and the Senior Credit Facility as so amended, the "Term Loan Agreement"), which included an extension of the maturity date of a portion of the term loan from March 2019 to March 2021 (the "Tranche B-2 Term Loan"). The remaining term loan continued to have a maturity date of March 2019 ("the Tranche B-1 Term Loan"). In the event that all outstanding amounts under the convertible senior notes exceeding $50.0 million are not repaid, refinanced, converted or effectively discharged prior to May 2020 ("Springing Maturity Date"), the maturity date of the Tranche B-2 Term Loan will become the Springing Maturity Date, subject to certain adjustments. In connection with the debt refinancing, the Company recognized a loss of $16.7 million during the first quarter of 2018, which primarily included third-party fees. As of September 30, 2019, the Company had paid off the Tranche B-1 Term Loan and had $440.0 million outstanding under the Tranche B-2 Term Loan. The Company also entered into a new asset-based credit agreement (the "ABL Credit Agreement"), consisting of:
|
|
|
|
•
|
a $275.0 million asset-based Term Loan Facility advanced on a “first-in, last-out” basis (the "FILO Term Loan") with a maturity date of December 2022 (which maturity date will become May 2020, subject to certain adjustments, should the Springing Maturity Date be triggered); and
|
|
|
|
|
•
|
a $100 million asset-based Revolving Credit Facility (the "Revolving Credit Facility") with a maturity date of August 2022 (which maturity date will become May 2020, subject to certain adjustments, should the Springing Maturity Date be triggered). In connection with the transfer of the Nutra manufacturing and Anderson facility net assets to the manufacturing joint venture with IVC, the Revolving Credit Facility commitment was reduced from $100 million to $81 million effective March 2019. As of September 30, 2019 there were no borrowings outstanding on the Revolving Credit Facility.
|
The Tranche B-2 Term Loan requires annual aggregate principal payments of at least $43 million and bears interest at a rate of, at the Company's option, LIBOR plus a margin of 8.75% per annum subject to change under certain circumstances (with a minimum and maximum margin of 8.25% and 9.25%, respectively, per annum), or prime plus a margin of 7.75% per annum subject to change under certain circumstances (with a minimum and maximum margin of 7.25% and 8.25%, respectively, per annum). Any mandatory repayments as defined in the credit agreement shall be applied to the remaining annual aggregate principal payments in direct order of maturity. As discussed in further detail below, in November 2018 the Company paid $100 million on the Tranche B-2 Term Loan and elected to use the payment to satisfy the scheduled amortization payments on the Term Loan Facility through December 2020. The Term Loan Agreement is secured by a (i) first lien on certain assets of the Company primarily consisting of capital stock issued by General Nutrition Centers, Inc. ("Centers") and its subsidiaries, intellectual property and equipment (“Term Priority Collateral”) and (ii) second lien on certain assets of the Company primarily consisting of inventory and accounts receivable (“ABL Priority Collateral”). The Term Loan Agreement is guaranteed by all material, wholly-owned domestic subsidiaries of the Company (the “U.S. Guarantors”) and by General Nutrition Centres Company, an unlimited liability company organized under the laws of Nova Scotia (together with the U.S. Guarantors, the “Guarantors”).
There are no scheduled amortization payments associated with the FILO Term Loan, which bears interest at a rate of LIBOR plus a margin of 7.00% per annum subject to decrease under certain circumstances (with a minimum possible interest rate of LIBOR plus a margin of 6.50% per annum). Outstanding borrowings under the Revolving Credit Facility bear interest at a rate of LIBOR plus 1.75% (subject to an increase or decrease of 0.25% based on the amount available to be drawn under the Revolving Credit Facility). The Company is also required to pay an annual fee to revolving lenders equal to a maximum of 2.0% (subject to adjustment based on the amount available to be drawn under the Revolving Credit Facility) on outstanding letters of credit and an annual commitment fee of 0.375% on the undrawn portion of the Revolving Credit Facility, which is subject to an increase to 0.5% based on the amount available to drawn under the Revolving Credit Facility. The FILO Term Loan and Revolving Credit Facility are secured by a (i) first lien on ABL Priority Collateral and (ii) second lien on Term Priority Collateral. The FILO Term Loan and Revolving Credit Facility are guaranteed by the Guarantors.
Under the Company’s Term Loan Agreement and ABL Credit Agreement (collectively, the "Credit Facilities"), the Company is required to make certain mandatory prepayments, including a requirement to prepay first the Tranche B-2 Term Loan (until repaid in full) and second the FILO Term Loan (until repaid in full, but only if such prepayment is permitted under the ABL Credit Agreement) in each case annually with amounts based on excess cash flow, as defined in the Company’s Credit Facilities, based on the results of the Company for the prior fiscal year. The payment will be 75% of excess cash flow for each such fiscal year, subject to a reduction to 50% based on the attainment of a certain Consolidated Net First Lien Leverage Ratio, and will be reduced by certain scheduled debt payment amounts. The Company made the first excess cash flow payment in the amount of $9.8 million in April 2019 with respect to the year ending December 31, 2018. The Company currently expects the excess cash flow payment for the year ending
December 31, 2019, which is required to be paid in the second quarter of 2020, to be between $25 million and $35 million at 50%.
At September 30, 2019, the Company's contractual interest rates under the Tranche B-2 Term Loan and the FILO Term Loan were 10.8% and 9.1%, respectively, which consist of LIBOR plus the applicable margin rate. At December 31, 2018, the interest rates under the Tranche B-1 Term Loan, Tranche B-2 Term Loan, and the FILO Term Loan were 5.7%, 11.8%, and 9.5%, respectively. At September 30, 2019, the Company had $68.2 million available under the Revolving Credit Facility, after giving effect to $5.7 million utilized to secure letters of credit and a $7.1 million reduction to borrowing ability as a result of decrease in net collateral.
The Company’s Credit Facilities contain customary covenants, including limitations on the ability of GNC Corporation, Centers, and Centers' subsidiaries to, among other things, incur debt, grant liens on their assets, enter into mergers or liquidations, sell assets, make investments or acquisitions, make optional payments in respect of, or modify, certain other debt instruments, pay dividends or other payments on capital stock, or enter into arrangements that restrict their ability to pay dividends or grant liens. Despite these limitations, the Company has the ability to discharge the liabilities of GNC Holdings, Inc. in the ordinary course of business through a variety of alternatives, including a restricted payment basket, a junior lien debt incurrence basket, and repayment of intercompany debt.
In addition, the Term Loan Agreement requires compliance, as of the end of each fiscal quarter of the Company, with a maximum Consolidated Net First Lien Leverage Ratio initially set at 5.50 to 1.00 through December 31, 2018 and decreasing to 5.00 to 1.00 from March 31, 2019 to December 31, 2019 and 4.25 to 1.00 thereafter. If the Company’s availability under the Revolving Credit Facility is less than the greater of (i) 12.5% of the borrowing base or (ii) $12.5M, then the ABL Credit Agreement requires compliance as of the end of each fiscal quarter with a minimum Fixed Charge Coverage Ratio of 1.00 to 1.00. The Company is currently in compliance, and expects to remain in compliance over the next twelve months, with the terms of its Credit Facilities.
The Company utilized proceeds from the investment from Harbin Pharmaceutical Group Co., Ltd ("Harbin") and the Manufacturing JV with IVC to pay down outstanding long-term debt. The $100 million investment from Harbin received in November 2018 was utilized to pay a portion of the Tranche B-2 Term Loan. The Company elected to use the payment to satisfy the scheduled amortization payments through December 2020. The Company received the remaining $200 million investment from Harbin and $101 million from IVC in the first quarter of 2019, the proceeds of which were used to pay down the remaining balance of the Tranche B-1 Term Loan that matured in March 2019. The remaining proceeds, together with cash generated from operating activities, were utilized to pay $114.0 million of the Tranche B-2 Term Loan and the original issuance discount due to the Tranche B-2 Term Loan lenders at 2% of outstanding balance.
Management believes that cash generated from operations, together with amounts available under the Revolving Credit Facility, will be sufficient to service its debt (including the expected excess cash flow payment), over the next twelve months. While our plan is to refinance our indebtedness by the end of 2019, we make no assurances regarding the likelihood, certainty or exact timing of this refinancing. In the event that a refinancing does not occur before the Springing Maturity Date or the August 2020 maturity date, management believes that the Company will have the ability to repay $159.1 million of the Notes with projected cash on hand and the Revolving Credit Facility.
Convertible Debt
As of September 30, 2019, the Company maintains $159.1 million in principal amount of 1.5% convertible senior notes due in August 2020 (the "Notes"). The Notes consist of the following components:
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2019
|
|
December 31, 2018
|
|
|
(in thousands)
|
|
Liability component
|
|
|
|
|
Principal
|
$
|
159,097
|
|
|
$
|
188,565
|
|
|
Conversion feature
|
(5,419
|
)
|
|
(11,489
|
)
|
|
Discount related to debt issuance costs
|
(734
|
)
|
|
(1,572
|
)
|
|
Net carrying amount
|
$
|
152,944
|
|
|
$
|
175,504
|
|
During the second quarter of 2019, the Company repurchased $29.5 million in aggregate principal amount of the Notes for $24.7 million in cash. The convertible debt repurchase resulted in a gain of $3.2 million, which included the unamortized conversion feature of $1.3 million and unamortized discount of $0.2 million.
Interest Rate Swaps
On June 13, 2018, the Company entered into two interest rate swaps with notional amounts of $275 million and $225 million to limit the exposure of its variable interest rate debt by effectively converting it to a fixed interest rate. The Company receives payments based on the one-month LIBOR and makes payments based on a fixed rate. The Company receives payments with a floor of 0.00% and 0.75%, respectively, on the $275 million and $225 million interest rate swaps, which aligns with the related debt instruments. The interest rate swap agreements had an effective date of June 29, 2018. The $225 million interest rate swap expires on February 28, 2021, and the $275 million interest rate swap expires on June 30, 2021. The notional amount of the $225 million interest rate swap has scheduled decreases to $175 million on June 30, 2019, $125 million on June 30, 2020 and $75 million on December 31, 2020. The Company designated these instruments as cash flow hedges deemed effective upon initiation. The interest rate swaps are recognized on the balance sheet at fair value. Changes in fair value are recorded within other comprehensive loss on the Consolidated Balance Sheet and reclassified into the Consolidated Statement of Operations as interest expense in the period in which the underlying transaction affects earnings.
The fair values of the derivative financial instruments included in the Consolidated Balance Sheets consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands, except percentages)
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value at
|
|
|
Notional Amount
|
|
Fixed Rate
|
|
Balance Sheet Classification
|
|
September 30, 2019
|
|
December 31, 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounting cash flow hedges:
|
|
|
|
|
|
|
|
|
|
Interest rate swap
|
$
|
275,000
|
|
|
2.82
|
%
|
|
Other long-term liabilities
|
|
$
|
6,258
|
|
|
$
|
2,371
|
|
|
Interest rate swap(1)
|
175,000
|
|
|
2.74
|
%
|
|
Other long-term liabilities
|
|
2,283
|
|
|
839
|
|
|
Net carrying amount
|
$
|
450,000
|
|
|
|
|
Total liabilities
|
|
$
|
8,541
|
|
|
$
|
3,210
|
|
(1) The notional amount of the $225 million interest rate swap had decreased to $175 million on June 30, 2019 as scheduled.
At September 30, 2019, there was a cumulative unrealized loss of $5.9 million, net of tax, related to these interest rate swaps included in accumulated other comprehensive loss. This loss would be immediately recognized in the Consolidated Statement of Operations if these instruments fail to meet certain cash flow hedge requirements. As of September 30, 2019, the amount included in accumulated other comprehensive loss related to the interest rate swaps to be reclassified into earnings during the next 12 months is $3.6 million. Refer to Note 7, "Fair Value Measurements of Financial Instruments" for more information on how the interest rate swaps are valued.
Interest Expense
Interest expense consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
|
(in thousands)
|
|
Tranche B-1 Term Loan coupon
|
$
|
—
|
|
|
$
|
1,755
|
|
|
$
|
928
|
|
|
$
|
11,496
|
|
|
Tranche B-2 Term Loan coupon
|
12,849
|
|
|
20,447
|
|
|
42,271
|
|
|
45,976
|
|
|
FILO Term Loan coupon
|
6,901
|
|
|
6,901
|
|
|
20,479
|
|
|
15,241
|
|
|
Revolving Credit Facility
|
97
|
|
|
285
|
|
|
316
|
|
|
655
|
|
|
Terminated revolving credit facility
|
—
|
|
|
—
|
|
|
—
|
|
|
316
|
|
|
Amortization of discount and debt issuance costs
|
2,522
|
|
|
3,659
|
|
|
11,087
|
|
|
8,954
|
|
|
Subtotal
|
22,369
|
|
|
33,047
|
|
|
75,081
|
|
|
82,638
|
|
|
Notes:
|
|
|
|
|
|
|
|
|
Coupon
|
597
|
|
|
707
|
|
|
2,033
|
|
|
2,121
|
|
|
Amortization of conversion feature
|
1,413
|
|
|
1,655
|
|
|
4,725
|
|
|
4,898
|
|
|
Amortization of discount and debt issuance costs
|
193
|
|
|
244
|
|
|
679
|
|
|
731
|
|
|
Total Notes
|
2,203
|
|
|
2,606
|
|
|
7,437
|
|
|
7,750
|
|
|
Other
|
(116
|
)
|
|
79
|
|
|
(142
|
)
|
|
60
|
|
|
Interest expense, net
|
$
|
24,456
|
|
|
$
|
35,732
|
|
|
$
|
82,376
|
|
|
$
|
90,448
|
|
NOTE 6. EQUITY METHOD INVESTMENTS
In February 2019, the Company contributed its China business in exchange for 35% ownership of each of the newly formed joint ventures with Harbin, the HK JV and China JV. The HK JV includes the operation of the cross-border China e-commerce business, and has an exclusive right to use the Company’s trademarks to manufacture and distribute the Company’s products in China (excluding Hong Kong, Taiwan and Macau) via e-commerce channels. The China JV is a retail-focused joint venture to operate GNC's brick-and-mortar retail business in China and it will have an exclusive right to use the Company's trademarks to manufacture and distribute the Company's products in China (excluding Hong Kong, Taiwan and Macau) via retail stores and pharmacies. The HK JV closed in February 2019 and the China JV agreement is expected to be completed in the fourth quarter of 2019 or the first quarter of 2020, following the satisfaction of certain routine regulatory and legal requirements.
In March 2019, the Company received $101 million, net of a $1.8 million working capital purchase price adjustment in the second quarter of 2019, from IVC and contributed the net assets of the Nutra manufacturing and Anderson facilities in exchange for an initial 43% equity interest in a newly formed manufacturing joint venture. In addition, the Company made a capital contribution of $10.7 million to the Manufacturing JV to fund its share of short-term working capital needs. Over the next four years, GNC expects to receive an additional $75 million from IVC, adjusted up or down based on the Manufacturing JV's future performance, as IVC’s ownership of the joint venture increases to 100%. The Manufacturing JV is responsible for the manufacturing of the products previously produced by the Company at the Nutra manufacturing facility.
Gain (loss) from the net asset exchange
In connection with the formation of the joint ventures effective in the first quarter of 2019, the Company deconsolidated its China business and its Nutra manufacturing business which resulted in a pre-tax gain of $5.8 million and loss of $27.1 million, respectively, recorded within loss on net asset exchange for the formation of the joint ventures on the Consolidated Statements of Operations. The $5.8 million gain from the Harbin transaction was calculated based on the difference between the fair value of the 35% equity interest in the HK JV and China JV, less the carrying value of the contributed China business, including $2.4 million of cash, and third-party closing fees. The $27.1 million loss from the Manufacturing JV transaction was calculated based on the fair value of the 43% equity interest retained in the Manufacturing JV and the $101 million in cash received, net of a $1.8 million working capital purchase price adjustment in the second quarter of 2019, less the carrying value of the contributed Nutra and Anderson facilities and third-party closing fees.
The Company's interests in the joint ventures are accounted for as equity method investments due to the Company’s ability to exercise significant influence over management decisions of the joint ventures. Under the equity method, the Company's share of profits and losses from the joint ventures is recorded within income from equity method investments on the Consolidated Statement of Operations. The following table provides a reconciliation of equity method investments on the Company’s Consolidated Balance Sheets:
|
|
|
|
|
|
|
|
|
September 30, 2019
|
|
|
(in thousands)
|
|
Manufacturing JV
|
$
|
75,434
|
|
|
Manufacturing JV capital contribution
|
10,714
|
|
|
HK JV and China JV
|
10,180
|
|
|
Income from equity method investments
|
4,192
|
|
|
Distributions received from equity method investments
|
(791
|
)
|
|
Total Equity method investments
|
$
|
99,729
|
|
In connection with the transaction with IVC, the Company entered into a lease for warehouse space within the Anderson facility. Refer to Note 8, "Leases" for more information. Additionally, the Company purchased approximately $46 million and $118 million, respectively, of finished goods from the Manufacturing JV during the three and nine months ended September 30, 2019 and had approximately $10 million accounts payable outstanding as of September 30, 2019. In connection with the HK JV, the Company recognized revenue, primarily from wholesale sales and royalties, of $3.8 million and $8.1 million, respectively, for the three and nine months ended September 30, 2019 and had $6.4 million accounts receivable outstanding as of September 30, 2019.
NOTE 7. FAIR VALUE MEASUREMENTS AND FINANCIAL INSTRUMENTS
Accounting Standards Codification 820, Fair Value Measurements and Disclosures defines fair value as a market-based measurement that should be determined based on the assumptions that marketplace participants would use in pricing an asset or liability. As a basis for considering such assumptions, the standard establishes a three-tier fair value hierarchy which prioritizes the inputs used in measuring fair value as follows:
|
|
|
|
|
Level 1 — observable inputs such as quoted prices in active markets for identical assets and liabilities;
|
|
Level 2 — observable inputs such as quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, other inputs that are observable, or can be corroborated by observable market data; and
|
|
Level 3 — unobservable inputs for which there are little or no market data, which require the reporting entity to develop its own assumptions.
|
The carrying amounts of cash and cash equivalents, receivables, accounts payable, accrued liabilities and the Revolving Credit Facility approximate their respective fair values. Based on the interest rates currently available and their underlying risk, the carrying value of franchise notes receivable recorded in other long-term assets approximates its fair value.
The carrying value and estimated fair value of the forward contracts for the issuance of convertible preferred stock, the Term Loan Facility, net of discount, Notes (net of the equity component classified in stockholders' equity and discount) and the interest rate swaps were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2019
|
|
December 31, 2018
|
|
|
Carrying
Amount
|
|
Fair
Value
|
|
Carrying
Amount
|
|
Fair
Value
|
|
|
(in thousands)
|
|
Assets:
|
|
|
|
|
|
|
|
|
Forward contracts for the issuance of convertible preferred stock
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
88,942
|
|
|
$
|
88,942
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
Tranche B-1 Term Loan
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
147,289
|
|
|
$
|
145,080
|
|
|
Tranche B-2 Term Loan
|
440,009
|
|
|
418,559
|
|
|
554,760
|
|
|
511,766
|
|
|
FILO Term Loan
|
266,132
|
|
|
266,417
|
|
|
264,086
|
|
|
260,125
|
|
|
Notes
|
152,944
|
|
|
142,620
|
|
|
175,504
|
|
|
131,628
|
|
|
Interest rate swaps
|
8,541
|
|
|
8,541
|
|
|
3,210
|
|
|
3,210
|
|
The forward contracts for the issuance of convertible preferred stock were measured at fair value, as of the valuation date, using a single factor binomial lattice model (the "Lattice Model") which incorporates the terms and conditions of the convertible preferred stock and is based on changes in the prices of the underlying common share price over successive periods of time. Key assumptions of the Lattice Model include the current price of the underlying stock and its historical and expected volatility, risk-neutral interest rates and the instrument's remaining term. These assumptions require significant management judgment and are considered Level 3 inputs. The forward contracts were revalued at each reporting period with changes in fair value recognized in the Consolidated Statements of Operations. The forward contracts settled upon issuance on January 2, 2019 and February 13, 2019.
The fair values of the term loans were determined using the instruments' trading value in markets that are not active, which are considered Level 2 inputs. The fair value of the Notes was determined based on quoted market prices and bond terms and conditions, which are considered Level 2 inputs. The Company's interest rate swaps are carried at fair value, which is based primarily on Level 2 inputs utilizing readily observable market data, such as LIBOR forward rates, for all substantial terms of the interest rate swap contracts and the assessment of nonperformance risk.
NOTE 8. LEASES
The Company has operating leases for retail stores, distribution centers, other leased office locations, vehicles and certain equipment with remaining lease terms of one to 15 years, some of which include options to extend the leases for up to 10 years. As of September 30, 2019, the weighted average remaining lease term was 5.2 years and the weighted average discount rate was 10%. On the Company’s Consolidated Balance Sheets as of September 30, 2019, the Company had lease liabilities of $463.1 million, of which $115.5 million are classified as current, and right-of-use assets of $362.8 million.
The Company has elected to apply the short-term lease exemption for all asset classes and excluded them from the balance sheet. Lease payments for short-term leases are recognized on a straight-line basis over the lease term. The short-term rent expense recognized during the three months and nine months ended September 30, 2019 is immaterial. The components of the Company's rent expense, which is recorded within cost of sales on the Consolidated Statements of Operations, was as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30, 2019
|
|
Nine months ended September 30, 2019
|
|
|
(in thousands)
|
|
Company-owned and franchise stores:
|
|
|
|
|
Operating leases
|
$
|
36,833
|
|
|
$
|
107,710
|
|
|
Variable lease costs (1)
|
20,300
|
|
|
62,824
|
|
|
Total company-owned and franchise stores
|
57,133
|
|
|
170,534
|
|
|
Other
|
1,822
|
|
|
5,976
|
|
|
Total rent expense
|
$
|
58,955
|
|
|
$
|
176,510
|
|
(1) Includes percent and contingent rent, landlord related taxes and common operating expenses.
Supplemental cash flow information related to leases was as follows:
|
|
|
|
|
|
|
|
|
Nine months ended September 30, 2019
|
|
|
(in thousands)
|
|
Operating cash flow information:
|
|
|
Cash paid for amounts included in the measurement of operating lease liabilities
|
$
|
130,374
|
|
|
Right-of-use assets obtained in exchange for new operating lease liabilities
|
$
|
23,829
|
|
The Company recorded sublease revenue relating to subleases with its franchisees, which includes rental income and other occupancy related items, within revenue on the Consolidated Statements of Operations, of $10.5 million and $32.0 million, respectively, in the three and nine months ended September 30, 2019, and $11.1 million and $34.5 million, respectively, in the three and nine months ended September 30, 2018
Maturities of the lease liabilities (undiscounted lease payments, as defined in Note 2 "Basis of Presentation") as of September 30, 2019 were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Leases for Company-Owned and Franchise Stores
|
|
Operating Leases for Other (1)
|
|
Total Operating Leases
|
|
Sublease
Income from Franchisees
|
|
Rent on Operating Leases, net of Sublease Revenue
|
|
|
(in thousands)
|
|
2019 (remainder)
|
$
|
40,348
|
|
|
$
|
1,823
|
|
|
$
|
42,171
|
|
|
$
|
(7,641
|
)
|
|
$
|
34,530
|
|
|
2020
|
140,618
|
|
|
6,611
|
|
|
147,229
|
|
|
(27,431
|
)
|
|
119,798
|
|
|
2021
|
111,072
|
|
|
4,739
|
|
|
115,811
|
|
|
(21,938
|
)
|
|
93,873
|
|
|
2022
|
82,612
|
|
|
2,721
|
|
|
85,333
|
|
|
(16,713
|
)
|
|
68,620
|
|
|
2023
|
61,422
|
|
|
1,355
|
|
|
62,777
|
|
|
(12,370
|
)
|
|
50,407
|
|
|
Thereafter
|
137,869
|
|
|
6,703
|
|
|
144,572
|
|
|
(28,900
|
)
|
|
115,672
|
|
|
Total future obligations
|
$
|
573,941
|
|
|
$
|
23,952
|
|
|
$
|
597,893
|
|
|
$
|
(114,993
|
)
|
|
$
|
482,900
|
|
|
Less amounts representing interest
|
|
|
|
|
|
(134,762
|
)
|
|
|
|
|
|
|
Present value of lease obligations
|
|
|
|
|
|
|
$
|
463,131
|
|
|
|
|
|
(1) Includes various leases for warehouses, vehicles, and various equipment at the Company's facilities.
As of September 30, 2019, leases that the Company has entered into but have not yet commenced are immaterial.
In connection with the transaction with IVC for the Manufacturing JV effective March 1, 2019, the Company leased warehouse space within the Anderson facility from the Manufacturing JV for a term of one year. The lease was accounted for as a sale leaseback transaction and classified as an operating lease included in the current lease liabilities on the Consolidated Balance Sheet.
Disclosures related to periods prior to adoption of ASU 2016-02
The Company adopted ASU 2016-02 using a modified retrospective adoption method at January 1, 2019 as noted in Note 2. "Basis of Presentation." As required, the following disclosure is provided for periods prior to adoption. Minimum future rent obligations for non-cancelable operating leases, excluding optional renewal periods, were as follows for the period ended December 31, 2018 and exclude landlord related taxes, common operating expenses, and percent and contingent rent.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Leases for Company-Owned and Franchise Stores
|
|
Operating Leases for Other (1)
|
|
Total Operating Leases
|
|
Sublease
Income from Franchisees
|
|
Rent on Operating Leases, net of Sublease Revenue
|
|
|
(in thousands)
|
|
2019
|
$
|
162,910
|
|
|
$
|
6,071
|
|
|
$
|
168,981
|
|
|
$
|
(29,867
|
)
|
|
$
|
139,114
|
|
|
2020
|
126,312
|
|
|
5,574
|
|
|
131,886
|
|
|
(23,631
|
)
|
|
108,255
|
|
|
2021
|
95,000
|
|
|
4,185
|
|
|
99,185
|
|
|
(16,782
|
)
|
|
82,403
|
|
|
2022
|
64,735
|
|
|
2,479
|
|
|
67,214
|
|
|
(10,285
|
)
|
|
56,929
|
|
|
2023
|
39,798
|
|
|
1,290
|
|
|
41,088
|
|
|
(4,717
|
)
|
|
36,371
|
|
|
Thereafter
|
56,200
|
|
|
6,703
|
|
|
62,903
|
|
|
(4,238
|
)
|
|
58,665
|
|
|
Total future obligations
|
$
|
544,955
|
|
|
$
|
26,302
|
|
|
$
|
571,257
|
|
|
$
|
(89,520
|
)
|
|
$
|
481,737
|
|
(1) Includes various leases for warehouses, vehicles, and various equipment at the Company's facilities.
NOTE 9. CONTINGENCIES
The Company is engaged in various legal actions, claims and proceedings arising in the normal course of business, including claims related to breach of contracts, product liability matters, intellectual property matters and employment-related matters resulting from the Company's business activities.
The Company's contingencies are subject to substantial uncertainties, including for each such contingency the following, among other factors: (i) the procedural status of the case; (ii) whether the case has or may be certified as a class action suit; (iii) the outcome of preliminary motions; (iv) the impact of discovery; (v) whether there are significant factual issues to be determined or resolved; (vi) whether the proceedings involve a large number of parties and/or parties and claims in multiple jurisdictions or jurisdictions in which the relevant laws are complex or unclear; (vii) the extent of potential damages, which are often unspecified or indeterminate; and (viii) the status of settlement discussions, if any, and the settlement posture of the parties. Consequently, except as otherwise noted below with regard to a particular matter, the Company cannot predict with any reasonable certainty the timing or outcome of the legal matters described below, and the Company is unable to estimate a possible loss or range of loss for such matters. If the Company ultimately is required to make any payments in connection with an adverse outcome in any of the matters discussed below, it is possible that it could have a material adverse effect on the Company's business, financial condition, results of operations or cash flows.
As a manufacturer, prior to the formation of the Manufacturing JV, and retailer of nutritional supplements and other consumer products that are ingested by consumers or applied to their bodies, the Company has been and is currently subjected to various product liability claims. Although the effects of these claims to date have not been material to the Company, it is possible that current and future product liability claims could have a material adverse effect on its business or financial condition, results of operations or cash flows. The Company currently maintains product liability insurance with a deductible/retention of $4.0 million per claim with an aggregate cap on retained loss of $10.0 million per policy year. The Company typically seeks and has obtained contractual indemnification from most parties that supply raw materials for its products or that manufacture or market products it sells. The Company also typically seeks to be added, and has been added, as an additional insured under most of such parties' insurance policies. However, any such indemnification or insurance is limited by its terms and any such indemnification, as a practical matter, is limited to the creditworthiness of the indemnifying party and its insurer, and the absence of significant defenses by the insurers. Consequently, the Company may incur material product liability claims, which could increase its costs and adversely affect its reputation, revenue and operating income.
Litigation
DMAA / Aegeline Claims. Prior to December 2013, the Company sold products manufactured by third parties that contained derivatives from geranium known as 1.3-dimethylpentylamine/ dimethylamylamine/ 13-dimethylamylamine, or "DMAA," which were recalled from the Company's stores in November 2013, and/or Aegeline, a compound extracted from bael trees. As of September 30, 2019, the Company was named in 27 personal injury lawsuits involving products containing DMAA and/or Aegeline.
These matters are currently stayed pending final resolution.
The Company is contractually entitled to indemnification by its third-party vendors with regard to these matters, although the Company’s ability to obtain full recovery in respect of any such claims against it is dependent upon the creditworthiness of the vendors and/or their insurance coverage and the absence of any significant defenses available to their insurers.
California Wage and Break Claims. On February 29, 2012, former Senior Store Manager, Elizabeth Naranjo, individually and on behalf of all others similarly situated, sued General Nutrition Corporation in the Superior Court of the State of California for the County of Alameda. The complaint contains eight causes of action, alleging, among other matters, meal, rest break and overtime violations for which indeterminate money damages for wages, penalties, interest, and legal fees are sought. In June 2018, the Court granted in part and denied in part the Company's Motion for Decertification. In August 2018, the plaintiff voluntarily dismissed the class action claims alleging overtime violations. As of September 30, 2019, an immaterial liability has been accrued in the accompanying financial statements. The Company intends to vigorously defend against the remaining class action claims asserted in this action. Trial is currently scheduled for January 2020.
Pennsylvania Fluctuating Workweek. On September 18, 2013, Tawny Chevalier and Andrew Hiller commenced a class action in the Court of Common Pleas of Allegheny County, Pennsylvania. Plaintiff asserted a claim against the Company for a purported violation of the Pennsylvania Minimum Wage Act ("PMWA"), challenging the Company's utilization of the "fluctuating workweek" method to calculate overtime compensation, on behalf of all
employees who worked for the Company in Pennsylvania and who were paid according to the fluctuating workweek method. In October 2014, the Court entered an order holding that the use of the fluctuating workweek method violated the PMWA. In September 2016, the Court entered judgment in favor of Plaintiffs and the class in an immaterial amount, which has been recorded as a charge in the accompanying Consolidated Financial Statements. Plaintiffs subsequently filed a petition for an award of attorney's fees, costs and incentive payment. The court awarded an immaterial amount in legal fees. The Company appealed the adverse judgment and the award of attorney's fees. On December 22, 2017, the Pennsylvania Superior Court held that the Company correctly determined the "regular rate" by dividing weekly compensation by all hours worked (rather than 40), but held that the regular rate must be multiplied by 1.5 (rather than 0.5) to determine the amount of overtime owed. Taking accumulated interest into account, the net result of the Superior Court's decision was to reduce the Company's liability by an immaterial amount, which has been reflected in the accompanying Consolidated Financial Statements. The Company filed a petition for appeal to the Pennsylvania Supreme Court on January 22, 2018. The Pennsylvania Supreme Court accepted the Company's petition for appeal and the Company filed its appellant’s brief on August 27, 2018. Oral argument occurred in April 2019 and the Company awaits the Court’s ruling.
Jason Olive v. General Nutrition Corp. In April 2012, Jason Olive filed a complaint in the Superior Court of California, County of Los Angeles, for misappropriation of likeness in which he alleges that the Company continued to use his image in stores after the expiration of the license to do so in violation of common law and California statutes. Mr. Olive is seeking compensatory, punitive and statutory damages and attorneys’ fees and costs. The trial in this matter began on July 20, 2016 and concluded on August 8, 2016. The jury awarded plaintiff immaterial amounts for actual damages and emotional distress damages, which are accrued in the accompanying Consolidated Financial Statements. The jury refused to award plaintiff any of the profits he sought to disgorge, or punitive damages. The court entered judgment in the case on October 14, 2016. In addition to the verdict, the Company and Mr. Olive sought attorneys' fees and other costs from the Court. The Court refused to award attorney's fees to either side but awarded plaintiff an immaterial amount for costs. Plaintiff has appealed the judgment, and separately, the order denying attorney's fees. The Company has cross-appealed the judgment and the Court's denial of attorney fees. Argument occurred in October 2018. On November 2, 2018, the Court affirmed the trial court's decision in part and reversed in part, reversing the denial of Mr. Olive's motion for attorneys' fees and remanding the matter to the trial court for further proceedings regarding his attorneys' fees and costs. On November 16, 2018, the Company filed a motion for reconsideration of the Court’s decision. On December 27, 2018, the Court reversed, in part, its November 2, 2018 ruling and held that there was no prevailing party for the purposes of the attorneys’ fee award. Olive has filed a petition for review with the Supreme Court of the State of California and the Company has opposed that petition. On April 17, 2019, the California Supreme Court denied Olive’s petition for review.
Oregon Attorney General. On October 22, 2015, the Attorney General for the State of Oregon sued the Company in Multnomah County Circuit Court for alleged violations of Oregon’s Unlawful Trade Practices Act, in connection with its sale in Oregon of certain third-party products. The Company is vigorously defending itself against these allegations. Along with its Amended Answer and Affirmative Defenses, the Company filed a counterclaim for declaratory relief, asking the court to make certain rulings in favor of the Company, and adding USPlabs, LLC and SK Laboratories as counterclaim defendants. In March 2018, the Oregon Attorney General filed a motion for summary judgment relating to its first claim for relief, which the Company contested. The Company filed a cross motion for summary judgment on the first claim for relief, which the Oregon Attorney General contested. Following oral argument in August 2018, the Court denied the State’s motion for summary judgment and granted in part and denied in part the Company’s motion for summary judgment. The parties are in the process of exchanging discovery. Trial is currently scheduled to begin in September 2020.
As any losses that may arise from this matter are not probable or reasonably estimable at this time, no liability has been accrued in the accompanying Consolidated Financial Statements. Moreover, the Company does not anticipate that any such losses are likely to have a material impact on the Company, its business or results of operations. The Company is contractually entitled to indemnification and defense by its third-party vendors. Ultimately, however, the Company's ability to obtain full recovery in respect of any such claims against it is dependent upon the creditworthiness of its vendors and/or their insurance coverage and the absence of any significant defenses available to their insurers.
E-Commerce Pricing Matters. In April 2016, Jenna Kaskorkis, et al. filed a complaint against General Nutrition Centers, Inc. followed by similar cases brought forth by Ashley Gennock in May 2016 and Kenneth Harrison in December 2016. Plaintiffs allege that the Company's promotional pricing on its website was misleading and did not fairly represent promotions based on average retail prices over a trended period of time being consistent with prices advertised as promotional. A tentative agreement was reached in the third quarter of 2017 on many of the key terms of a settlement. In September 2019, the Court granted preliminary approval of the parties’ settlement agreement. A final hearing is
scheduled for December 2019. The Company currently expects any settlement to be in a form that does not require the recording of a contingent liability.
Government Regulation
In November 2013, the Company received a subpoena from the U.S. Department of Justice ("DOJ") for information related to its investigation of a third party product vendor, USPlabs, LLC. The Company fully cooperated with the investigation of the vendor and the related products, all of which were discontinued in 2013. In December 2016, the Company reached agreement with the DOJ in connection with the Company's cooperation, which agreement acknowledges the Company relied on the representations and written guarantees of USPlabs and the Company's representation that it did not knowingly sell products not in compliance with the Federal Food, Drug and Cosmetic Act (the "FDCA"). Under the agreement, which included an immaterial payment to the federal government, the Company will take a number of actions to broaden industry-wide knowledge of prohibited ingredients and improve compliance by vendors of third party products. These actions are in keeping with the leadership role the Company has taken in setting industry quality and compliance standards, and the Company's commitment over the course of the agreement (60 months) to support a combination of its own and the industry's initiatives. Some of these actions include maintaining and continuously updating a list of restricted ingredients that will be prohibited from inclusion in any products that are sold by the Company. Vendors selling products to the Company for the sale of such products by the Company will be required to warrant that the products sold do not contain any of these restricted ingredients. In addition, the Company will develop and maintain a list of ingredients that the Company believes comply with the applicable provisions of the FDCA.
Environmental Compliance
As part of soil and groundwater remediation conducted at the Nutra manufacturing facility pursuant to an investigation conducted in partnership with the South Carolina Department of Health and Environmental Control (the "DHEC"), we completed additional investigations with the DHEC's approval, including the installation and operation of a pilot vapor extraction system under a portion of the facility in the second half of 2016, which was an immaterial cost to the Company. After an initial monitoring period, in October of 2017 the DHEC approved a work plan for extended monitoring of such system and the contamination into 2021. While the Company contributed the net assets of the Nutra manufacturing and Anderson facilities to the Manufacturing JV in March of 2019 (refer to Note 6 “Equity Method Investments” for additional information), we retained certain liabilities, including historical environmental liabilities, related to the facilities. As such, the Company and the Manufacturing Joint Venture will continue to consult with the DHEC on the next steps in the work after their review of the results of the extended monitoring is complete. At this stage of the investigation, however, it is not possible to estimate the timing and extent of any additional remedial action that may be required, the ultimate cost of remediation, or the amount of our potential liability. Therefore, no liability has been recorded in the Company's Consolidated Financial Statements.
In addition to the foregoing, the Company is subject to numerous federal, state, local and foreign environmental and health and safety laws and regulations governing its operations, including the handling, transportation and disposal of non-hazardous and hazardous substances and wastes, as well as emissions and discharges from its operations into the environment, including discharges to air, surface water and groundwater. Failure to comply with such laws and regulations could result in costs for remedial actions, penalties or the imposition of other liabilities, including certain historic liabilities retained by the Company pursuant to the terms of the Manufacturing JV. New laws, changes in existing laws or the interpretation thereof, or the development of new facts or changes in their processes could also cause the Company to incur additional capital and operating expenditures to maintain compliance with environmental laws and regulations and environmental permits. The Company is also subject to laws and regulations that impose liability and cleanup responsibility for releases of hazardous substances into the environment without regard to fault or knowledge about the condition or action causing the liability. Under certain of these laws and regulations, such liabilities can be imposed for cleanup of previously owned or operated properties, or for properties to which substances or wastes that were sent in connection with current or former operations at its facilities.
From time to time, the Company has incurred costs and obligations for correcting environmental and health and safety noncompliance matters and for remediation at or relating to certain of the Company's current or former properties or properties at which the Company's waste has been disposed. However, compliance with the provisions of national, state and local environmental laws and regulations has not had a material effect upon the Company's capital expenditures, earnings, financial position, liquidity or competitive position. The Company believes it has complied with, and is currently complying with, its environmental obligations pursuant to environmental and health and safety laws and regulations and that any liabilities for noncompliance will not have a material adverse effect on its business,
financial performance or cash flows. However, it is difficult to predict future liabilities and obligations, which could be material.
NOTE 10. MEZZANINE EQUITY
Holdings is authorized to issue up to 60.0 million shares of preferred stock, par value $0.001 per share. On February 13, 2018, the Company entered into a Securities Purchase Agreement (as amended from time to time, the “Securities Purchase Agreement”) by and between the Company and Harbin Pharmaceutical Group Holdings Co., Ltd. (the “Investor”), pursuant to which the Company agreed to issue and sell to the Investor, and the Investor agreed to purchase from the Company, 299,950 shares of a newly created series of convertible preferred stock of the Company, designated the “Series A Convertible Preferred Stock” (the “Convertible Preferred Stock”), for a purchase price of $1,000 per share, or an aggregate of approximately $300 million (the “Securities Purchase”). The Convertible Preferred Stock is convertible into 56.1 million shares of the Company's Common Stock at an initial conversion price of $5.35 per share, subject to customary anti-dilution adjustments. On November 7, 2018, The Company entered into an Amendment to the Securities Purchase Agreement with the Investor. Pursuant to the terms of the Securities Purchase Agreement, the Investor assigned its interest in the Securities Purchase Agreement to Harbin and funded the $300 million investment in three separate tranches. The shares of Convertible Preferred Stock were issued as follows: (i) 100,000 shares of Convertible Preferred Stock issued on November 8, 2018 for a total purchase price of $100 million (the "Initial Issuance"), (ii) 50,000 shares of Convertible Preferred Stock issued on January 2, 2019 for a total purchase price of $50 million (the "Second Issuance") and (iii) 149,950 shares of Convertible Preferred Stock issued on February 13, 2019 for a total purchase price of approximately $150 million (the “Third Issuance”).
Holders of shares of Convertible Preferred Stock are entitled to receive cumulative preferential dividends, payable quarterly in arrears, at an annual rate of 6.5% of the stated value of $1,000 per share, subject to increase in connection with the payment of dividends in kind. Dividends are payable, at the Company's option, in cash from legally available funds or in kind by issuing additional shares of Convertible Preferred Stock with such stated value equal to the amount of payment being made or by increasing the stated value of the outstanding Convertible Preferred Stock by the amount per share of the dividend or in a combination thereof.
As of September 30, 2019, the Company had issued a total of 299,950 shares of Convertible Preferred Stock. The Convertible Preferred Stock was recorded as Mezzanine Equity, net of issuance cost, on the Consolidated Balance Sheets because the shares are redeemable at the option of the holder if a fundamental change occurs, which includes change in control or delisting. The guaranteed Second Issuance and Third Issuance were considered forward contracts that represented an obligation to both parties until the shares were issued. The forward contracts were recorded at fair value on the Consolidated Balance Sheets as of December 31, 2018, with any changes in fair value recorded in earnings in the Consolidated Statements of Operations. The Company recorded a $16.8 million loss on forward contracts for the issuance of Convertible Preferred Stock during the first quarter of 2019. Upon issuance of the shares associated with the forward contracts, the carrying value of the forward contracts were recorded to Mezzanine Equity.
The Convertible Preferred Stock is not currently redeemable and is only redeemable upon a Fundamental Change at the Stated Value plus any accumulated and unpaid dividends on such shares on the Fundamental Change date. The Company does not believe a fundamental change is considered probable until it occurs. Subsequent adjustment of the amount presented in temporary equity is unnecessary if it is not probable that the instrument will become redeemable. As the Convertible Preferred Stock is only redeemable upon a fundamental change, the occurrence of which is not probable, we will not accrete the Convertible Preferred Stock until a fundamental change becomes probable to occur. As such, the Company will recognize changes in the redemption value to the Convertible Preferred Stock as they occur and adjust the carrying value to the redemption value at the end of each reporting period as if the end of the reporting period were also the redemption date for the Convertible Preferred Stock. As of September 30, 2019, the Stated Value of the Convertible Preferred Stock is $300.0 million (299,950 shares at $1,000 per share) and there are accumulated and unpaid dividends on such shares of $14.7 million.
NOTE 11. EARNINGS PER SHARE
The following table represents the Company's basic and dilutive weighted-average shares:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
|
(in thousands)
|
|
Basic weighted average shares
|
83,823
|
|
|
83,412
|
|
|
83,667
|
|
|
83,326
|
|
|
Effect of dilutive stock-based compensation awards
|
—
|
|
|
—
|
|
|
—
|
|
|
105
|
|
|
Diluted weighted average shares
|
83,823
|
|
|
83,412
|
|
|
83,667
|
|
|
83,431
|
|
For the three months and nine months ended September 30, 2019 and 2018, the following awards were excluded from the computation of diluted (loss) earnings per share because the impact of applying the treasury method was anti-dilutive or because certain conditions have not been met with respect to the Company's performance awards.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
Anti-dilutive:
|
(in thousands)
|
|
Time-based options and restricted stock awards
|
3,064
|
|
|
3,076
|
|
|
3,064
|
|
|
3,022
|
|
|
Performance-based restricted stock awards
|
917
|
|
|
1,241
|
|
|
917
|
|
|
1,013
|
|
|
Contingently issuable:
|
|
|
|
|
|
|
|
|
Performance-based restricted stock awards with a market condition
|
147
|
|
|
294
|
|
|
147
|
|
|
308
|
|
|
Total stock-based awards excluded from diluted EPS
|
4,128
|
|
|
4,611
|
|
|
4,128
|
|
|
4,343
|
|
All 4.1 million outstanding stock-based awards for the three months and nine months ended September 30, 2019 and all 4.6 million outstanding stock-based awards for the three months ended September 30, 2018 were excluded from the computation of diluted loss per share because the Company was in a net loss position and the inclusion of the awards would have been anti-dilutive. The Company has applied the if-converted method to calculate dilution on the Convertible Preferred Stock and Notes in the three and nine-months ended September 30, 2019, which has resulted in 58.0 million and 52.7 million, respectively, weighted average underlying shares from the Convertible Preferred Stock, which included the cumulative undeclared dividends, and 2.4 million weighted average underlying shares from the Notes being anti-dilutive.
The computations for basic and diluted (loss) earnings per common share are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
|
(in thousands, except per share data)
|
|
(Loss) earnings per common share - Basic
|
|
|
|
|
|
|
|
|
Net (loss) income
|
$
|
(2,418
|
)
|
|
$
|
(8,590
|
)
|
|
$
|
(1,622
|
)
|
|
$
|
10,941
|
|
|
Cumulative undeclared convertible preferred stock dividend
|
5,031
|
|
|
—
|
|
|
13,697
|
|
|
—
|
|
|
Net (loss) income attributable to common shareholders
|
(7,449
|
)
|
|
(8,590
|
)
|
|
(15,319
|
)
|
|
10,941
|
|
|
Weighted average common shares outstanding - basic
|
83,823
|
|
|
83,412
|
|
|
83,667
|
|
|
83,326
|
|
|
(Loss) earnings per common share - basic
|
$
|
(0.09
|
)
|
|
$
|
(0.10
|
)
|
|
$
|
(0.18
|
)
|
|
$
|
0.13
|
|
|
(Loss) earnings per common share - Diluted
|
|
|
|
|
|
|
|
|
Net (loss) income
|
$
|
(2,418
|
)
|
|
$
|
(8,590
|
)
|
|
$
|
(1,622
|
)
|
|
$
|
10,941
|
|
|
Cumulative undeclared convertible preferred stock dividends
|
5,031
|
|
|
—
|
|
|
13,697
|
|
|
—
|
|
|
Net (loss) income attributable to common shareholders
|
(7,449
|
)
|
|
(8,590
|
)
|
|
(15,319
|
)
|
|
10,941
|
|
|
Weighted average common shares outstanding - diluted
|
83,823
|
|
|
83,412
|
|
|
83,667
|
|
|
83,431
|
|
|
(Loss) earnings per common share - diluted
|
$
|
(0.09
|
)
|
|
$
|
(0.10
|
)
|
|
$
|
(0.18
|
)
|
|
$
|
0.13
|
|
NOTE 12. SEGMENTS
The Company aggregates its operating segments into three reportable segments, which include U.S. and Canada, International and Manufacturing / Wholesale. Warehousing and distribution costs have been allocated to each reportable segment based on estimated utilization and benefit. The Company's chief operating decision maker (its chief executive officer) evaluates segment operating results based primarily on performance indicators, including revenue and operating income. Operating income of each reportable segment excludes certain items that are managed at the consolidated level, such as corporate costs. The Manufacturing / Wholesale segment manufactures and sells product to the U.S. and Canada and International segments at cost with a markup, which is eliminated at consolidation.
The following table represents key financial information for each of the Company's reportable segments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
|
(in thousands)
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
U.S. and Canada
|
$
|
444,734
|
|
|
$
|
476,519
|
|
|
$
|
1,409,951
|
|
|
$
|
1,506,250
|
|
|
International
|
36,940
|
|
|
51,407
|
|
|
117,311
|
|
|
140,107
|
|
|
Manufacturing / Wholesale:
|
|
|
|
|
|
|
|
|
|
|
|
Intersegment revenues
|
—
|
|
|
63,695
|
|
|
35,505
|
|
|
193,596
|
|
|
Third-party
|
17,402
|
|
|
52,259
|
|
|
70,575
|
|
|
159,305
|
|
|
Subtotal Manufacturing / Wholesale
|
17,402
|
|
|
115,954
|
|
|
106,080
|
|
|
352,901
|
|
|
Total reportable segment revenues
|
499,076
|
|
|
643,880
|
|
|
1,633,342
|
|
|
1,999,258
|
|
|
Elimination of intersegment revenues
|
—
|
|
|
(63,695
|
)
|
|
(35,505
|
)
|
|
(193,596
|
)
|
|
Total revenue
|
$
|
499,076
|
|
|
$
|
580,185
|
|
|
$
|
1,597,837
|
|
|
$
|
1,805,662
|
|
|
Operating income:
|
|
|
|
|
|
|
|
|
|
|
U.S. and Canada
|
$
|
32,715
|
|
|
$
|
11,466
|
|
|
$
|
134,017
|
|
|
$
|
100,559
|
|
|
International
|
12,653
|
|
|
16,468
|
|
|
40,972
|
|
|
46,624
|
|
|
Manufacturing / Wholesale
|
5,052
|
|
|
16,869
|
|
|
32,514
|
|
|
47,722
|
|
|
Total reportable segment operating income
|
50,420
|
|
|
44,803
|
|
|
207,503
|
|
|
194,905
|
|
|
Corporate costs
|
(23,766
|
)
|
|
(24,732
|
)
|
|
(75,106
|
)
|
|
(79,511
|
)
|
|
Loss on net asset exchange for the formation of the joint ventures
|
—
|
|
|
—
|
|
|
(21,293
|
)
|
|
—
|
|
|
Other
|
—
|
|
|
(110
|
)
|
|
(250
|
)
|
|
(160
|
)
|
|
Unallocated corporate costs, loss on net asset exchange and other
|
(23,766
|
)
|
|
(24,842
|
)
|
|
(96,649
|
)
|
|
(79,671
|
)
|
|
Total operating income
|
26,654
|
|
|
19,961
|
|
|
110,854
|
|
|
115,234
|
|
|
Interest expense, net
|
24,456
|
|
|
35,732
|
|
|
82,376
|
|
|
90,448
|
|
|
Gain on purchase of convertible debt
|
—
|
|
|
—
|
|
|
(3,214
|
)
|
|
—
|
|
|
Loss on forward contracts for the issuance of convertible preferred stock
|
—
|
|
|
—
|
|
|
16,787
|
|
|
—
|
|
|
Loss on debt refinancing
|
—
|
|
|
—
|
|
|
—
|
|
|
16,740
|
|
|
Income (loss) before income taxes
|
$
|
2,198
|
|
|
$
|
(15,771
|
)
|
|
$
|
14,905
|
|
|
$
|
8,046
|
|
Refer to Note 3, "Revenue" for more information on the Company's reportable segments.
NOTE 13. INCOME TAXES
The Company recognized $5.7 million of income tax expense during the three months ended September 30, 2019 compared with $7.2 million of income tax benefit in the prior year quarter. The Company recognized $20.7 million of income tax expense during the nine months ended September 30, 2019 compared with $2.9 million of income tax benefit in the same period in 2018. The Company's income tax expense is based on income, statutory tax rates and tax planning opportunities available in the jurisdictions in which it operates. The Company’s year-to-date tax provision is calculated by applying the most recent annualized effective tax rate to year-to-date pre-tax ordinary income. The Company’s most recent annualized effective tax rate was significantly impacted by a gain for tax purposes resulting from the transfer of the Nutra manufacturing net assets to the Manufacturing JV and the establishment of a partial valuation allowance for attributes generated in the current year that may not be realizable, partially offset by discrete tax benefits associated with the finalization of the Company's 2018 federal income tax return. The tax impacts of unusual or infrequent items are recorded discretely in the interim period in which they occur. The Company discretely recorded the tax impact of the loss on forward contracts for the issuance of Convertible Preferred Stock. This loss was not deductible for income tax purposes.
At September 30, 2019 and December 31, 2018, the Company had $9.8 million and $6.9 million of unrecognized tax benefits, respectively, excluding interest and penalties, which if recognized, would affect the effective tax rate. The Company recognizes accrued interest and penalties related to unrecognized tax benefits in income tax expense. The Company accrued $2.1 million at September 30, 2019 and $2.0 million at December 31, 2018, for potential interest and penalties associated with uncertain tax positions. To the extent interest and penalties are not assessed with respect to the ultimate settlement of uncertain tax positions, amounts previously accrued will be reversed as a reduction to income tax expense.
Holdings files a consolidated federal tax return and various consolidated and separate tax returns as prescribed by the tax laws of the state, local and international jurisdictions in which it and its subsidiaries operate. The statutes of limitation for the Company’s U.S. federal income tax returns are closed for years through 2013. The Company has various state and local jurisdiction tax years open to examination (the earliest open period is generally 2011).