Item
1. Financial Statements.
ProPhase
Labs, Inc. and Subsidiaries
Condensed
Consolidated Balance Sheets
(in
thousands, except share and per share amounts)
|
|
September
30, 2017
|
|
|
December
31, 2016
|
|
|
|
(unaudited)
|
|
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
(Note 2)
|
|
$
|
3,897
|
|
|
$
|
441
|
|
Marketable securities, available
for sale (Note 2)
|
|
|
23,641
|
|
|
|
-
|
|
Escrow receivable, current
|
|
|
2,500
|
|
|
|
-
|
|
Accounts receivable, net (Note 2)
|
|
|
1,113
|
|
|
|
5,770
|
|
Inventory (Note 2)
|
|
|
1,992
|
|
|
|
2,736
|
|
Prepaid expenses and other current
assets (Note 2)
|
|
|
568
|
|
|
|
680
|
|
Assets held
for sale (Note 3)
|
|
|
22
|
|
|
|
-
|
|
Total current
assets
|
|
|
33,733
|
|
|
|
9,627
|
|
|
|
|
|
|
|
|
|
|
Property,
plant and equipment, net of accumulated depreciation
of
$5,369 and $5,134, respectively (Note 2)
|
|
|
2,849
|
|
|
|
3,175
|
|
Escrow receivable
|
|
|
2,500
|
|
|
|
-
|
|
Total
assets
|
|
$
|
39,082
|
|
|
$
|
12,802
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND
STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
Secured promissory notes, net (Note
4)
|
|
$
|
-
|
|
|
$
|
1,490
|
|
Accounts payable
|
|
|
503
|
|
|
|
2,156
|
|
Accrued advertising and other allowances
(Note 2)
|
|
|
1,288
|
|
|
|
2,805
|
|
Other current liabilities
|
|
|
322
|
|
|
|
389
|
|
Due to Mylan,
Inc. and affiliates (Note 3)
|
|
|
319
|
|
|
|
-
|
|
Total
current liabilities
|
|
|
2,432
|
|
|
|
6,840
|
|
|
|
|
|
|
|
|
|
|
COMMITMENTS AND CONTINGENCIES (Note
7)
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
Preferred stock, authorized 1,000,000,
$.0005 par value, no shares issued (Note 5)
|
|
|
-
|
|
|
|
-
|
|
Common stock, $.0005 par value; authorized
50,000,000; issued: 27,046,593 and 26,313,593 shares, respectively (Note 5)
|
|
|
13
|
|
|
|
13
|
|
Additional paid-in-capital
|
|
|
57,347
|
|
|
|
56,378
|
|
Retained earnings (Accumulated deficit)
|
|
|
21,869
|
|
|
|
(19,687
|
)
|
Accumulated other comprehensive loss
|
|
|
(35
|
)
|
|
|
-
|
|
Treasury stock,
at cost, 14,618,132 and 9,232,817 shares (Note 5)
|
|
|
(42,544
|
)
|
|
|
(30,742
|
)
|
Total
stockholders’ equity
|
|
|
36,650
|
|
|
|
5,962
|
|
Total
liabilities and stockholders’ equity
|
|
$
|
39,082
|
|
|
$
|
12,802
|
|
See
accompanying notes to condensed consolidated financial statements
ProPhase
Labs, Inc. and Subsidiaries
Condensed
Consolidated Statements of Operations and Other Comprehensive Income
(in
thousands, except per share amounts)
(unaudited)
|
|
Three
Months Ended
|
|
|
Nine
Months Ended
|
|
|
|
September
30, 2017
|
|
|
September
30, 2016
|
|
|
September
30, 2017
|
|
|
September
30, 2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
sales (Note 2)
|
|
$
|
3,040
|
|
|
$
|
1,402
|
|
|
$
|
5,716
|
|
|
$
|
3,439
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost
of sales (Note 2)
|
|
|
2,608
|
|
|
|
1,205
|
|
|
|
5,060
|
|
|
|
2,929
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
profit
|
|
|
432
|
|
|
|
197
|
|
|
|
656
|
|
|
|
510
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
expenses (Note 2):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
and marketing
|
|
|
150
|
|
|
|
153
|
|
|
|
486
|
|
|
|
686
|
|
Administration
|
|
|
1,124
|
|
|
|
734
|
|
|
|
3,510
|
|
|
|
2,881
|
|
Research
and development
|
|
|
60
|
|
|
|
43
|
|
|
|
318
|
|
|
|
202
|
|
|
|
|
1,334
|
|
|
|
930
|
|
|
|
4,314
|
|
|
|
3,769
|
|
Other
income (expense), net
|
|
|
125
|
|
|
|
(53
|
)
|
|
|
222
|
|
|
|
(158
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss
from continuing operations before income taxes (Note 6)
|
|
|
(777
|
)
|
|
|
(786
|
)
|
|
|
(3,436
|
)
|
|
|
(3,417
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
tax benefit from continuing operations
|
|
|
-
|
|
|
|
-
|
|
|
|
18,113
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
(loss) from continuing operations
|
|
|
(777
|
)
|
|
|
(786
|
)
|
|
|
14,677
|
|
|
|
(3,417
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued
operations (Note 3):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
from discontinued operations
|
|
|
-
|
|
|
|
953
|
|
|
|
530
|
|
|
|
1,121
|
|
Gain
on sale of discontinued operations, net of taxes
|
|
|
-
|
|
|
|
-
|
|
|
|
26,349
|
|
|
|
-
|
|
Income
from discontinued operations
|
|
|
-
|
|
|
|
953
|
|
|
|
26,879
|
|
|
|
1,121
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income (loss)
|
|
$
|
(777
|
)
|
|
$
|
167
|
|
|
$
|
41,556
|
|
|
$
|
(2,296
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
comprehensive income (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized
loss on marketable securities (Note 2)
|
|
|
(35
|
)
|
|
|
-
|
|
|
|
(35
|
)
|
|
|
-
|
|
Total
comprehensive income (loss)
|
|
$
|
(812
|
)
|
|
$
|
167
|
|
|
$
|
41,521
|
|
|
$
|
(2,296
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
earnings (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
(loss) from continuing operations
|
|
$
|
(0.05
|
)
|
|
($
|
0.05
|
)
|
|
$
|
0.88
|
|
|
$
|
(0.20
|
)
|
Income
from discontinued continued operations
|
|
|
-
|
|
|
|
0.06
|
|
|
|
1.61
|
|
|
|
0.07
|
|
Net
income (loss)
|
|
$
|
(0.05
|
)
|
|
$
|
0.01
|
|
|
$
|
2.49
|
|
|
$
|
(0.13
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
earnings (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
(loss) from continuing operations
|
|
$
|
(0.05
|
)
|
|
$
|
(0.04
|
)
|
|
$
|
0.86
|
|
|
$
|
(0.20
|
)
|
Income
from discontinued continued operations
|
|
|
-
|
|
|
|
0.05
|
|
|
|
1.57
|
|
|
|
0.07
|
|
Net
income (loss)
|
|
$
|
(0.05
|
)
|
|
$
|
0.01
|
|
|
$
|
2.43
|
|
|
$
|
(0.13
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average common shares outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
15,967
|
|
|
|
17,081
|
|
|
|
16,661
|
|
|
|
17,081
|
|
Diluted
|
|
|
15,967
|
|
|
|
17,600
|
|
|
|
17,118
|
|
|
|
17,081
|
|
See
accompanying notes to condensed consolidated financial statements
ProPhase
Labs, Inc. and Subsidiaries
Condensed
Consolidated Statement of Stockholders’ Equity
For
the Nine Months Ended September 30, 2017
(in
thousands, except share data)
(unaudited)
|
|
Common
Stock Shares
|
|
|
|
|
Additional
|
|
|
Retained
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
Outstanding,
Net of
|
|
Par
|
|
|
Paid-In
|
|
|
Earnings
|
|
|
Comprehensive
|
|
|
Treasury
|
|
|
|
|
|
|
Shares
of Treasury Stock
|
|
Value
|
|
|
Capital
|
|
|
(Accum.
Deficit)
|
|
|
Loss
|
|
|
Stock
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
at December 31, 2016
|
|
|
17,080,776
|
|
|
|
$
|
13
|
|
|
$
|
56,378
|
|
|
$
|
(19,687
|
)
|
|
$
|
-
|
|
|
$
|
(30,742
|
)
|
|
$
|
5,962
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41,556
|
|
|
|
|
|
|
|
|
|
|
|
41,556
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(35
|
)
|
|
|
|
|
|
|
(35
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds
from warrants exercised
|
|
|
51,000
|
|
|
|
|
|
|
|
|
69
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
69
|
|
Proceeds
from options exercised
|
|
|
682,000
|
|
|
|
|
|
|
|
|
854
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
854
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasury
stock acquired
|
|
|
(5,385,315
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11,802
|
)
|
|
|
(11,802
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share-based
compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
46
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
46
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax
benefit from exercise of warrants and options
|
|
|
|
|
|
|
|
|
|
|
|
179
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
179
|
|
Tax
benefit allowance
|
|
|
|
|
|
|
|
|
|
|
|
(179
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(179
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
at September 30, 2017
|
|
|
12,428,461
|
|
|
|
$
|
13
|
|
|
$
|
57,347
|
|
|
$
|
21,869
|
|
|
$
|
(35
|
)
|
|
$
|
(42,544
|
)
|
|
$
|
36,650
|
|
See
accompanying notes to condensed consolidated financial statements
ProPhase
Labs, Inc. and Subsidiaries
Condensed
Consolidated Statements of Cash Flows
(in
thousands)
(unaudited)
|
|
Nine
Months Ended
|
|
|
|
September
30, 2017
|
|
|
September
30, 2016
|
|
|
|
|
|
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
41,556
|
|
|
$
|
(2,296
|
)
|
Adjustments to reconcile net income
(loss) to net cash
|
|
|
|
|
|
|
|
|
provided by (used in) operating activities:
|
|
|
|
|
|
|
|
|
Gain on sale of assets, net of taxes
|
|
|
(26,339
|
)
|
|
|
-
|
|
Change in valuation allowance, income
tax
|
|
|
(19,473
|
)
|
|
|
-
|
|
Depreciation
|
|
|
515
|
|
|
|
317
|
|
Amortization of loan origination
and warrant expenses
|
|
|
10
|
|
|
|
18
|
|
Share-based compensation expense
|
|
|
46
|
|
|
|
1
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
4,657
|
|
|
|
167
|
|
Inventory
|
|
|
744
|
|
|
|
133
|
|
Prepaid and other
assets
|
|
|
112
|
|
|
|
-
|
|
Accounts payable
|
|
|
(1,653
|
)
|
|
|
978
|
|
Accrued advertising
and other allowances
|
|
|
(1,517
|
)
|
|
|
(210
|
)
|
Due to Mylan,
Inc. and affiliates
|
|
|
319
|
|
|
|
-
|
|
Other current
liabilities
|
|
|
(67
|
)
|
|
|
22
|
|
Assets
held for sale
|
|
|
(22
|
)
|
|
|
-
|
|
Net
cash used in operating activities
|
|
|
(1,112
|
)
|
|
|
(870
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Net proceeds from the sale of asset
|
|
|
40,825
|
|
|
|
-
|
|
Purchase of marketable securities
|
|
|
(32,194
|
)
|
|
|
-
|
|
Sale of marketable securities
|
|
|
8,518
|
|
|
|
-
|
|
Capital expenditures
|
|
|
(202
|
)
|
|
|
(419
|
)
|
Net
cash provided by (used in) investing activities
|
|
|
16,947
|
|
|
|
(419
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Payments to retire Notes
|
|
|
(1,500
|
)
|
|
|
-
|
|
Payments to acquire treasury stock
|
|
|
(11,802
|
)
|
|
|
-
|
|
Proceeds from exercise of warrants
|
|
|
69
|
|
|
|
-
|
|
Proceeds from
exercise of stock options
|
|
|
854
|
|
|
|
-
|
|
Net
cash used in financing activities
|
|
|
(12,379
|
)
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash and
cash equivalents
|
|
|
3,456
|
|
|
|
(1,289
|
)
|
|
|
|
|
|
|
|
|
|
Cash and cash
equivalents at beginning of period
|
|
|
441
|
|
|
|
1,664
|
|
|
|
|
|
|
|
|
|
|
Cash and cash
equivalents at end of period
|
|
$
|
3,897
|
|
|
$
|
375
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosures of cash
flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
paid
|
|
$
|
54
|
|
|
$
|
95
|
|
|
|
|
|
|
|
|
|
|
Income
taxes paid
|
|
$
|
1,350
|
|
|
$
|
-
|
|
|
|
|
|
|
|
|
|
|
Non-cash investing activities:
|
|
|
|
|
|
|
|
|
Escrow
receivable
|
|
$
|
5,000
|
|
|
$
|
-
|
|
Net
unrealized losses, investments in marketable securities
|
|
$
|
35
|
|
|
$
|
-
|
|
See
accompanying notes to condensed consolidated financial statements
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 1 – Organization
and Business
ProPhase Labs, Inc. (“we”,
“us” or the “Company”) was initially organized in Nevada in July 1989. Effective June 18, 2015, we changed
our state of incorporation from the State of Nevada to the State of Delaware. We are a manufacturer, marketer and distributor
of a diversified range of health care and cold remedy products that are offered to the general public. We are also engaged in
the research and development of potential over-the-counter (“OTC”) drug and natural base health products including
supplements, personal care and cosmeceutical products. On August 23, 2017, the Company formed a new wholly-owned subsidiary,
ProPhase Digital Media, Inc. (a Delaware corporation), which will be responsible for marketing the dietary TK Supplements
®
product line, but could also market other companies’ products as well.
Discontinued Operations
Prior to March 29, 2017,
our flagship OTC drug brand was Cold-EEZE
®
and our principal product was Cold-EEZE
®
cold remedy
zinc gluconate lozenges, proven in clinical studies to reduce the duration and severity of symptoms of the common cold. In addition
to Cold-EEZE
®
cold remedy lozenges, we also marketed and distributed non-lozenge forms of our proprietary zinc
gluconate formulation, (i) Cold-EEZE
®
cold remedy QuickMelts
®
, (ii) Cold-EEZE
®
Gummies
and (iii) Cold-EEZE
®
cold remedy Oral Spray. Each of the Cold-EEZE
®
QuickMelts
®
and
Gummies products are based on a proprietary zinc gluconate formulation in combination with certain (i) immune system support, (ii)
energy, (iii) sleep and relaxation, and/or (iv) cold and flu symptom relieving active ingredients.
On January 6, 2017, we
signed an asset purchase agreement (as amended, the “Asset Purchase Agreement”), by and among the Company, Meda Consumer
Healthcare Inc. (“MCH”) and Mylan Inc. (together with MCH, “Mylan”), for the sale of assets by us to Mylan
(see Note 3). The sale of assets (i) was subject to stockholder approval and other customary closing conditions and (ii) consisted
principally of the sale of our intellectual property rights and other assets relating to our Cold-EEZE
®
brand and
product line (collectively, referred to herein as the “Cold-EEZE
®
Business”) to Mylan, including all
current and pipeline over-the-counter allergy, cold, flu, multi-symptom relief and immune support treatments for adults and children
to the extent each is, or is intended to be, branded “Cold-EEZE
®
”, and all private label versions thereof,
including all formulations and derivatives thereof as set forth in the Asset Purchase Agreement.
A special meeting of our
stockholders was held on March 29, 2017 (the “Special Meeting”). At the Special Meeting, our stockholders approved
the sale of assets and the transactions contemplated by the Asset Purchase Agreement. Effective March 29, 2017, we completed the
sale of the Cold-EEZE
®
Business to Mylan. As a consequence of the sale of the Cold-EEZE
®
Business,
for the three and nine months ended September 30, 2017 and 2016, we have classified as discontinued operations (i) the gain from
the sale of the Cold-EEZE
®
Business, (ii) all income and expenses attributable to the Cold-EEZE
®
Business
and (iii) the income tax expense attributed to the sale of the Cold-EEZE
®
Business (see Notes 3 and 6). Excluded
from the sale of the Cold-EEZE
®
Business were our accounts receivable and inventory, and we also retained all liabilities
associated with our Cold-EEZE
®
Business operations arising prior to March 29, 2017.
Continuing Operations
We continue to own and
operate our manufacturing facility and manufacturing business in Lebanon, Pennsylvania, and our headquarters in Doylestown, Pennsylvania.
As part of the sale of the Cold-EEZE
®
Business, we entered into a manufacturing agreement (see Note 7) with Mylan
and our wholly-owned subsidiary, Pharmaloz Manufacturing, Inc. (“PMI”), to supply various Cold-EEZE
®
lozenge products to Mylan. In addition to the production services we provide to Mylan under the manufacturing agreement, we produce
OTC drug and dietary supplement lozenges and other products for other third party customers in addition to performing operational
tasks such as warehousing, customer order processing and shipping.
We are also pursuing a
series of new product development and pre-commercialization initiatives in the OTC dietary supplement category. Initial OTC dietary
supplement product development activities were completed in the fourth quarter of Fiscal 2015 under the brand name of TK Supplements
®
.
The TK Supplements
®
product line comprises of three men’s health products: (i) Legendz XL
®
for sexual health, (ii) Triple Edge XL
®
, a daily energy booster plus testosterone support, and (iii) Super ProstaFlow
Plus
TM
for prostate and urinary health. In addition to developing direct-to-consumer (“Direct Response”)
marketing strategies of Legendz XL
®
, we received initial product acceptance and shipped into a national chain drug
retailer and to several regional retailers during the Fiscal 2017.
For the three and nine
months ended September 30, 2017 and 2016, our revenues from continuing operations have come principally from our OTC health care
products.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 1 – Organization
and Business – continued
We use a December 31 year-end
for financial reporting purposes. References herein to “Fiscal 2017” shall mean the fiscal year ended December 31,
2017 and references to other “Fiscal” years shall mean the year, which ended on December 31 of the year indicated.
The term “we”, “us” or the “Company” as used herein also refer, where appropriate, to the Company,
together with its subsidiaries unless the context otherwise requires.
Note 2 – Summary of
Significant Accounting Policies
Basis of Presentation
The unaudited condensed
consolidated financial statements
have been prepared in accordance with generally accepted
accounting principles for interim financial statements and within the rules of the Securities and Exchange Commission (“SEC”)
applicable to interim financial statements and therefore do not include all disclosures that might normally be required for financial
statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”).
The accompanying unaudited condensed consolidated financial statements have been prepared by management without audit and should
be read in conjunction with our consolidated financial statements, including the notes thereto, appearing in our Annual Report
on Form 10-K for Fiscal 2016.
In the opinion of management, all adjustments necessary for a fair presentation of the consolidated
financial position, consolidated results of operations and consolidated cash flows, for the periods indicated, have been made.
The results of operations for the three and nine months ended September 30, 2017 are not
necessarily indicative of operating results that may be achieved over the course of the full year.
Historical financial
statements have been reclassified to conform to the current period presentation, principally reflecting the sale of Cold-EEZE
®
Business as discontinued operations.
Discontinued Operations
Carve Out and ProPhase Allocations
For the three and nine
months ended September 30, 2017 and 2016, results from operations for our Cold-EEZE
®
Business are classified as
discontinued operations The carve out of the discontinued operations (i) were prepared in accordance with the SEC’s carve
out rules under Staff Accounting Bulletin (“SAB”) Topic 1B1 and (ii) are derived from identifying and carving out the
specific assets, liabilities, net sales, cost of sales, operating expenses and interest expense associated with the Cold-EEZE
®
Business’s operations. General administrative and overhead expenses, including personnel expenses and bonuses, and research
and development overhead expenses incurred by us (for which the discontinued operation benefits from such resources) are allocated
to discontinued operations based upon the percentage of the Cold-EEZE
®
Business’s net sales to our consolidated
net sales. For the three months ended September 30, 2017 and 2016, we allocated (i) zero and $406,000, respectively, of administrative
expenses and (ii) zero and $77,000, respectively, of research and development expenses, to discontinued operations in the accompanying
condensed statements of operations. For the nine months ended September 30, 2017 and 2016, we allocated (i) $348,000 and $1.1 million
respectively, of administrative expenses and (ii) $52,000 and $172,000, respectively, of research and development expenses, to
discontinued operations in the accompanying condensed statements of operations (see Note 3).
Seasonality of the Business
Our net sales are derived
principally from our OTC heath care and cold remedy products sold in the United States of America. Our sales are influenced by
and subject to fluctuations in the timing of purchase and the ultimate level of demand for our products which are a function of
the timing, length and severity of each cold season. Generally, a cold season is defined as the period of September to March when
the incidence of the common cold rises as a consequence of the change in weather and other factors. We generally experience in
the first, third and fourth quarter higher levels of net sales. Revenues are generally at their lowest levels in the second quarter
when customer demand generally declines.
For the three and nine
months ended September 30, 2017 and 2016, our net sales were principally related to domestic markets.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 2 – Summary of
Significant Accounting Policies – continued
Use of Estimates
The preparation of financial
statements and the accompanying notes thereto, in conformity with GAAP, requires management to make estimates and assumptions that
affect reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial
statements and reported amounts of revenues and expenses during the respective reporting periods. Examples include the provision
for bad debt, sales returns and allowances, inventory obsolescence, useful lives of property and equipment, impairment of property
and equipment, income tax valuations and assumptions related to accrued advertising. When providing for the appropriate sales returns,
allowances, cash discounts and cooperative incentive promotion costs, we apply a uniform and consistent method for making certain
assumptions for estimating these provisions. These estimates and assumptions are based on historical experience, current trends
and other factors that management believes to be relevant at the time the financial statements are prepared. Management reviews
the accounting policies, assumptions, estimates and judgments on a quarterly basis. Actual results could differ from those estimates.
Cash and Cash Equivalents
We consider all highly
liquid investments with a maturity of three months or less at the time of purchase to be cash equivalents. Cash equivalents include
cash on hand and monies invested in money market funds. The carrying amount approximates the fair market value due to the short-term
maturity of these investments.
Marketable Securities
We have classified our
investments in marketable securities as available-for-sale and as a current asset. Our investments in marketable securities are
carried at fair value, with unrealized gains and losses included as a separate component of stockholders’ equity. Realized
gains and losses from our marketable securities recorded as other income (expense). We initiated short term investments in marketable
securities, which carry maturity dates under one year from date of purchase with interest rates of 0.87% - 1.56%, during
the third quarter of Fiscal 2017. For those three and nine months ended September 30, 2017, we reported an unrealized loss of
$35,000. Unrealized gains and losses are classified as other comprehensive income (loss) and the cost is determined on a specific
identification basis. The following is a summary of the components of our marketable securities and the underlying fair value
input level tier hierarchy (see long-lived assets below) (in thousands):
|
|
As of September 30, 2017
|
|
|
|
Input
|
|
|
Amortizied
|
|
|
Unrealized
|
|
|
Unrealized
|
|
|
Market
|
|
|
|
Level
|
|
|
cost
|
|
|
gain
|
|
|
loss
|
|
|
Value
|
|
U.S. government obligations
|
|
|
Level 2
|
|
|
$
|
6,455
|
|
|
$
|
-
|
|
|
$
|
1
|
|
|
$
|
6,454
|
|
Corporate obligations
|
|
|
Level 2
|
|
|
|
17,221
|
|
|
|
-
|
|
|
|
34
|
|
|
|
17,187
|
|
|
|
|
|
|
|
$
|
23,676
|
|
|
$
|
-
|
|
|
$
|
35
|
|
|
$
|
23,641
|
|
Inventory Valuation
Inventory is valued at
the lower of cost, determined on a first-in, first-out basis (FIFO), or market. Inventory items are analyzed to determine cost
and the market value and appropriate valuation adjustments are established. At September 30, 2017 and December 31, 2016, the financial
statements include adjustments to reduce inventory for excess or obsolete inventory of $1.5 million and $1.6 million, respectively.
The components of inventory are as follows (in thousands):
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2017
|
|
|
2016
|
|
Raw materials
|
|
$
|
1,493
|
|
|
$
|
1,404
|
|
Work in process
|
|
|
366
|
|
|
|
466
|
|
Finished goods
|
|
|
133
|
|
|
|
866
|
|
|
|
$
|
1,992
|
|
|
$
|
2,736
|
|
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 2 – Summary of Significant Accounting
Policies – continued
Property, Plant and Equipment
Property, plant and equipment
are recorded at cost. We use the straight-line method in computing depreciation for financial reporting purposes. Depreciation
expense is computed in accordance with the following ranges of estimated asset lives: building and improvements – ten to
thirty-nine years; machinery and equipment – three to seven years; computer software – three years; and furniture and
fixtures – five years.
Concentration of Risks
Future revenues, costs,
margins and profits will continue to be influenced by our ability to maintain our manufacturing availability and capacity together
with our marketing and distribution capabilities and the regulatory requirements associated with the development of OTC and other
personal care products in order to compete on a national level and/or international level.
Our business is subject
to federal and state laws and regulations adopted for the health and safety of users of our products. Our OTC health care products
are subject to regulations by various federal, state and local agencies, including the Food and Drug Administration (“FDA”)
and, as applicable, the Homeopathic Pharmacopoeia of the United States.
Financial instruments that
potentially subject us to significant concentrations of credit risk consist principally of cash investments, marketable securities
and trade accounts receivable. Our marketable securities are fixed income investments which are highly liquid and can be readily
purchased or sold through established markets.
We maintain cash and cash
equivalents with certain major financial institutions. As of September 30, 2017, our cash balance was $3.9 million and our bank
balance was $3.6 million. Of the total bank balance, $500,000 was covered by federal depository insurance and $3.1 million was
uninsured at September 30, 2017.
Trade accounts receivable
potentially subject us to credit concentrations from time-to-time as a consequence of the timing, payment pattern and ultimate
purchase volumes or shipping schedules with our customers. We extend credit to our customers based upon an evaluation of the customer’s
financial condition and credit history and generally we do not require collateral. Our customers include consumer products companies
and large national chain, regional, specialty and local retail stores. These credit concentrations may impact our overall exposure
to credit risk, either positively or negatively, in that our customers may be similarly affected by changes in economic, regulatory
or other conditions that may impact the timing and collectability of amounts due to us. As a consequence of an evaluation of our
customer’s financial condition, payment patterns, balance due to us and other factors, we did not offset our account receivable
with an allowance for bad debt at September 30, 2017 and December 31, 2016.
Long-lived Assets
We review our carrying value of our long-lived
assets with definite lives whenever events or changes in circumstances indicate that the carrying amount of the assets may not
be recoverable. When indicators of impairment exist, we determine whether the estimated undiscounted sum of the future cash flows
of such assets is less than their carrying amounts. If less, an impairment loss is recognized in the amount, if any, by which the
carrying amount of such assets exceeds their respective fair values. The determination of fair value is based on quoted market
prices in active markets, if available, or independent appraisals; sales price negotiations; or projected future cash flows discounted
at a rate determined by management to be commensurate with our business risk. The estimation of fair value utilizing discounted
forecasted cash flows includes significant judgments regarding assumptions of revenue, operating and marketing costs; selling and
administrative expenses; interest rates; property and equipment additions and retirements; industry competition; and general economic
and business conditions, among other factors.
Fair value is based on
the prices that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants
at the measurement date. In order to increase consistency and comparability in fair value measurements, a three-tier fair value
hierarchy prioritizes the inputs used to measure fair value. These tiers include: Level 1, defined as observable inputs such as
quoted prices in active markets; Level 2, defined as inputs other than quoted prices in active markets that are either directly
or indirectly observable; and Level 3, defined as unobservable inputs for which little or no market data exists, therefore requiring
an entity to develop its own assumptions.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 2 – Summary of
Significant Accounting Policies – continued
Fair Value of Financial
Instruments
Cash
and cash equivalents, marketable securities, accounts receivable, assets held for sale, accounts payable, accrued expenses and
notes payable are reflected in the Condensed Consolidated Financial Statements at carrying value which approximates fair value.
We account for our marketable securities at fair value pursuant to Accounting Standards Codification, or ASC, 820-10, with
the net unrealized gains or losses reported as a component of accumulated other comprehensive income or loss.
|
|
As of September 30, 2017
|
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
Marketable securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. government obligations
|
|
$
|
-
|
|
|
$
|
6,454
|
|
|
$
|
-
|
|
|
$
|
6,454
|
|
Corporate obligations
|
|
|
-
|
|
|
|
17,187
|
|
|
|
-
|
|
|
|
17,187
|
|
|
|
$
|
-
|
|
|
$
|
23,641
|
|
|
$
|
-
|
|
|
$
|
23,641
|
|
Revenue Recognition
We generate sales principally
through two types of customers, contract manufacturing customers and retail customers. Sales from product shipments to contract
manufacturing and retailer customer are recognized at the time ownership is transferred to the customer. Revenue from retailer
customers is reduced for trade promotions, estimated sales returns, cash discounts and other allowances in the same period as
the related sales are recorded. We make estimates of potential future product returns and other allowances related to current
period revenue. We analyze historical returns, current trends, and changes in customer and consumer demand when evaluating the
adequacy of the sales returns and other allowances.
Our return policy for retailer
customers accommodates returns for (i) discontinued products, (ii) store closings and (iii) products that have reached or exceeded
their designated expiration date. We do not impose a period of time within which product may be returned. All requests for product
returns must be submitted to us for pre-approval. The main components of our returns policy are: (i) we will accept returns that
are due to damaged product that is un-saleable and such return request activity falls within an acceptable range, (ii) we will
accept returns for products that have reached or exceeded designated expiration dates and (iii) we will accept returns in the event
that we discontinue a product provided that the customer will have the right to return only such items that it purchased directly
from us. We will not accept return requests pertaining to customer inventory “Overstocking” or “Resets”.
We will only accept return requests for product in its intended package configuration. We reserve the right to terminate shipment
of product to customers who have made unauthorized deductions contrary to our return policy or pursue other methods of reimbursement.
We compensate the customer for authorized returns by means of a credit applied to amounts owed or to be owed and in the case of
discontinued product only, also by way of an exchange. We do not have any significant product exchange history.
Pursuant
to the terms of the Asset Purchase Agreement, we are responsible for and continue to accept product returns of the Cold-EEZE
®
Business for product shipped prior to March 30, 2017. Additionally, pursuant to the terms of the Asset Purchase Agreement,
we allocated and, in June 2017, issued a credit to Mylan in the aggregate amount of $400,000 for future sales returns and allowances
relating to certain product returns that were sold by us prior to March 30, 2017.
As of September 30, 2017
and December 31, 2016, we included a provision for sales allowances of zero and $108,000, respectively. Additionally, accrued advertising
and other allowances as of September 30, 2017 included (i) $902,000 for estimated future sales returns and (ii) $371,000 for cooperative
incentive promotion costs. As of December 31, 2016, accrued advertising and other allowances included (i) $1.2 million for estimated
future sales returns and (ii) $1.5 million for cooperative incentive promotion costs.
One of our customers
accounted for 50.7% of our revenues in the nine months ended September 30, 2017, compared to one customer accounted for 68.3%
of our revenues in Fiscal 2016.
Advertising and Incentive
Promotions
Advertising and incentive
promotion costs are expensed within the period in which they are utilized. Advertising and incentive promotion expense is comprised
of (i) media advertising, presented as part of sales and marketing expense, (ii) cooperative incentive promotions and coupon program
expenses, which are accounted for as part of net sales, and (iii) free product, which is accounted for as part of cost of sales.
Advertising and incentive promotion expenses incurred (i) from continuing operations for the three months ended September 30, 2017
and 2016 were $22,000 and $46,000, respectively, and (ii) attributed to and classified as discontinued operations were zero and
$1.1 million, respectively. Advertising and incentive promotion expenses incurred (i) from continuing operations for the nine months
ended September 30, 2017 and 2016 were $78,000 and $385,000, respectively, and (ii) attributed to and classified as discontinued
operations were $2.8 million and $4.5 million, respectively. Included in prepaid expenses and other current assets was $10,000
and $263,000 at September 30, 2017 and December 31, 2016, respectively, relating to prepaid advertising and promotion expenses.
Shipping and Handling
Product sales may carry
shipping and handling charges to the purchaser, included as part of the invoiced price, which is classified as revenue. In all
cases, costs related to this revenue are recorded in cost of sales.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 2 – Summary of
Significant Accounting Policies – continued
Stock-Based Compensation
We recognize all share-based
payments to employees and directors, including grants of stock options, as compensation expense in the financial statements based
on their fair values. Fair values of stock options are determined through the use of the Black-Scholes option pricing model. The
compensation cost is recognized as an expense over the requisite service period of the award, which usually coincides with the
vesting period.
Stock and stock options
for the purchase of our common stock, $0.0005 par value (“Common Stock”), have been granted to both employees and non-employees
pursuant to the terms of certain agreements and stock option plans (see Note 5). Stock options are exercisable during a period
determined by us, but in no event later than ten years from the date granted. For the three months ended September 30, 2017 and
2016, we charged to operations $28,000 and zero, respectively, for share-based compensation expense for the aggregate fair value
of stock grants issued and vested stock options earned. For the nine months ended September 30, 2017 and 2016, we charged to operations
$46,000 and $1,000, respectively, for share-based compensation expense for the aggregate fair value of stock grants issued and
vested stock options earned.
Research and Development
Research and development costs are charged
to operations in the period incurred. Research and development costs incurred for the three months ended September 30, 2017 and
2016 (i) from continuing operations were $60,000 and $43,000, respectively, and (ii) attributed to and classified as discontinued
operations of zero and $77,000, respectively. Research and development costs incurred for the nine months ended September 30, 2017
and 2016 (i) from continuing operations were $318,000 and $202,000, respectively, and (ii) attributed to and classified as discontinued
operations of $52,000 and $172,000, respectively. Research and development costs are principally related to personnel expenses
and new product development initiatives and costs associated with our OTC health care products.
Income Taxes
We utilize the asset and
liability approach which requires the recognition of deferred tax assets and liabilities for the future tax consequences of events
that have been recognized in our financial statements or tax returns. In estimating future tax consequences, we generally consider
all expected future events other than enactments of changes in the tax law or rates. Until we have sufficient taxable income to
offset the temporary timing differences attributable to operations and the tax deductions attributable to option, warrant and stock
activities are assured, a full valuation allowance equaling the total deferred tax asset is being provided (see Notes 3 and 6).
We utilize a two-step approach
to recognizing and measuring uncertain tax positions. The first step is to evaluate the tax position for recognition by determining
if the weight of available evidence indicates that it is more likely than not that the position will be sustained on audit, including
resolution of related appeals or litigation processes, if any. The second step is to measure the tax benefit as the largest amount
which is more than fifty percent likely of being realized upon ultimate settlement. Any interest or penalties related to income
taxes will be recorded as interest or administrative expense, respectively.
As a result of our continuing
tax losses, we have recorded a full valuation allowance against a net deferred tax asset. Additionally, we have not recorded a
liability for unrecognized tax benefits.
Recently Issued Accounting Standards
In May 2014, the Financial
Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-09, “Revenue
from Contracts with Customers”, on revenue recognition. The new standard provides for a single five-step model to be applied
to all revenue contracts with customers as well as requires additional financial statement disclosures that will enable users
to understand the nature, amount, timing and uncertainty of revenue and cash flows relating to customer contracts. Companies have
an option to use either a retrospective approach or cumulative effect adjustment approach to implement the standard. This ASU,
as amended, is effective for fiscal years and interim periods within those years beginning after December 15, 2017. We plan
to adopt the provisions of the new standard in the first quarter of 2018. The Company is utilizing a comprehensive approach to
access the impact of the guidance our revenue. Additionally, the Company is evaluating the impact of the new guidance on disclosures,
as well as the impact on controls to support the recognition. We do not believe that its adoption will not have a material
impact on our consolidated financial statements.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 2 – Summary of
Significant Accounting Policies – continued
In February 2016, the FASB
issued ASU No. 2016-02 “Leases”. The new standard will require most leases to be recognized on the balance sheet which
will increase reported assets and liabilities. Lessor accounting remains substantially similar to current guidance. The new standard
is effective for annual and interim periods in fiscal years beginning after December 15, 2018, which for us is the first quarter
of fiscal 2019 and mandates a modified retrospective transition method. We do not intend to early adopt and are currently assessing
the impact of this update, but preliminarily believe that its adoption will not have a material impact on our consolidated financial
statements.
In
April 2016, the FASB issued ASU No. 2016-09, “Improvements to Employee Share-Based Payment Accounting”. The new
standard simplifies several aspects of the accounting for employee share-based payment transactions, including the accounting
for income taxes, forfeitures, and statutory tax withholding requirements, as well as classification in the statement of cash
flows. We adopted the standard in January 2017 with no material impact on our consolidated financial statements.
In June 2016, the FASB
issued ASU No. 2016-13, “Financial Instruments—Credit Losses.” The standard modifies the impairment model for
most financial assets, including trade accounts receivables and loans, and will require the use of an “expected loss”
model for instruments measured at amortized cost. Under this model, entities will be required to estimate the lifetime expected
credit loss on such instruments and record an allowance to offset the amortized cost basis of the financial asset, resulting in
a net presentation of the amount expected to be collected on the financial asset. The effective date of the standard is for fiscal
years beginning after December 15, 2019 with early adoption permitted. We are currently evaluating the impact adoption of this
update will have on our consolidated financial statements.
In August 2016, the FASB
issued ASU No. 2016-15, “Statement of Cash Flows: Classification of Certain Cash Receipts and Cash Payments”
.
The new standard attempts to reduce diversity in practice in how cash receipts and cash payments are presented and classified in
the statement of cash flows. ASU No. 2016-15 provides guidance on eight specific cash flow issues. The new guidance will be effective
for fiscal years beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted including
adoption in an interim period. We do not intend to early adopt and we are currently assessing the impact adoption of this update
will have on our consolidated financial statements.
In October 2016, the FASB
issued ASU No. 2016-16, “Income Taxes: Intra-Entity Transfers of Assets Other than Inventory”. The new standard requires
entities should recognize the income tax consequences of an asset other than inventory when the asset transfer occurs. The new
guidance will be effective for fiscal years beginning after December 15, 2017 and requires a modified retrospective adoption through
a cumulative effect adjustment directly to retained earnings as of the beginning of the period of adoption. We are currently evaluating
the impact adoption of this update will have on our consolidated financial statements.
Note 3 – Discontinued
Operations, Sale of the Cold-EEZE
®
Business
At the Special Meeting
held on March 29, 2017, our stockholders approved the sale of the Cold-EEZE
®
Business and the transactions contemplated
by the Asset Purchase Agreement. Effective March 29, 2017, we completed the sale of the Cold-EEZE
®
Business to Mylan.
As a consequence of the
sale of the Cold-EEZE
®
Business, for the three and nine months ended September 30, 2017 and 2016, we have classified
as discontinued operations (i) the gain from the sale of the Cold-EEZE
®
Business, (ii) all gains and losses attributable
to the Cold-EEZE
®
Business operations and (iii) the income tax expense attributed to the sale of the Cold-EEZE
®
Business (see Note 6). Excluded from the sale of the Cold-EEZE
®
Business were our accounts receivable and inventory,
and we also retained all liabilities associated with our Cold-EEZE
®
Business operations arising prior to March 29,
2017.
Pursuant
to the Asset Purchase Agreement, we also agreed to a one-time sale to Mylan
of certain non-lozenge-based Cold-EEZE
®
inventory. At September 30, 2017, we have classified as assets held for sale
approximately
$22,000 of such inventory, which approximates our cost. At December 31, 2016, the balance sheet impact of discontinued operations
was deemed not material, as such, no reclassifications for discontinued operations have been presented.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 3 – Discontinued Operations,
Sale of the Cold-EEZE
®
Business – continued
Pursuant to the Asset Purchase
Agreement, we entered into a 90 day transition service arrangement with Mylan, for which we earned $150,000 in transition service
fees through September 30, 2017. Pursuant to this arrangement, we (i) received, processed, fulfilled, and shipped customer orders,
and billed such customers for these shipments on behalf of Mylan from March 30, 2017 to June 30, 2017, (ii) processed certain sales
allowances, returns and other customer promotional deductions, and (iii) paid certain Cold-EEZE
®
Business expenses
which are to be reimbursed by Mylan. At September 30, 2017, we have a balance due to Mylan of $319,000 which is comprised of (i)
net billings to Mylan’s customers for product shipments, less sales and other allowances, of $1.0 million (ii) return allocation
of $400,000 for future sales returns and allowances (see Note 2), offset by (iii) $1.5 million for product shipments and transition
service fee due from Mylan and (iv) $240,000 for the reimbursement of certain Cold-EEZE
®
Business expenses we paid
on behalf of Mylan. For the nine months ended September 30, 2017, the $150,000 transition service fees earned are recorded as a
component of other income (expense).
The net proceeds received
from the sale of the Cold-EEZE
®
Business were as follows (in thousands):
|
|
Amount
|
|
Gross consideration from the sale of the Cold-EEZE
®
Business
|
|
$
|
50,000
|
|
Closing and transaction costs
|
|
|
(4,175
|
)
|
Net proceeds from sale of the Cold-EEZE
®
Business
|
|
|
45,825
|
|
Book value of assets sold
|
|
|
(13
|
)
|
Gain on sale of the Cold-EEZE
®
Business before income taxes
|
|
|
45,812
|
|
Income tax expense
|
|
|
(19,473
|
)
|
Gain on sale of the Cold-EEZE
®
Business after income taxes
|
|
$
|
26,339
|
|
|
|
|
|
|
Net proceeds:
|
|
|
|
|
Cash paid at closing, net of closing and transaction costs
|
|
$
|
43,145
|
|
Proceeds due on sale of assets, cash held in escrow (see Note 8)
|
|
|
5,000
|
|
|
|
$
|
48,145
|
|
For the nine months ended September 30, 2017,
we incurred $4.2 million in closing and transaction costs associated with the sale of the Cold-EEZE
®
Business which
were comprised of (i) transaction fees and related closing costs of $1.9 million and (ii) performance bonuses, contract termination
compensation and severance payments to certain employees associated with the sale of the Cold-EEZE
®
Business of
$2.3 million. The compensation committee of our board of directors approved these compensation arrangements. These compensation
and termination payments were paid by us in April 2017.
The following table sets
forth the condensed operating results of our discontinued operations for the three and nine months ended September 30, 2017 and
2016, respectively, (in thousands):
|
|
Three Months Ended September 30,
|
|
|
Nine Months Ended September 30,
|
|
|
|
2017
|
|
|
2016
|
|
|
2017
|
|
|
2016
|
|
Net sales
|
|
|
-
|
|
|
$
|
3,787
|
|
|
$
|
4,687
|
|
|
$
|
9,966
|
|
Cost of sales
|
|
|
-
|
|
|
|
1,827
|
|
|
|
2,037
|
|
|
|
4,255
|
|
Sales and marketing
|
|
|
-
|
|
|
|
524
|
|
|
|
1,720
|
|
|
|
3,357
|
|
Administration
|
|
|
-
|
|
|
|
406
|
|
|
|
348
|
|
|
|
1,061
|
|
Research and development
|
|
|
-
|
|
|
|
77
|
|
|
|
52
|
|
|
|
172
|
|
Income
from discontinued operations
|
|
$
|
-
|
|
|
$
|
953
|
|
|
$
|
530
|
|
|
$
|
1,121
|
|
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 4 – Secured Promissory Notes
and Other Obligations
Secured Promissory Notes
On December 11, 2015,
we executed two Subscription Agreements (the “Subscription Agreements”) with the investors named therein (the “Investors”)
providing for the purchase of 12% Secured Promissory Notes – Series A (“Notes”) in the aggregate principal amount
of up to $3.0 million and warrants to purchase shares of our Common Stock (the “Warrants”).
Notes in the amount of
$1.5 million and 51,000 Warrants, at an exercise price of $1.35 per share, which was equal to the closing price of our Common Stock
on the date of investment, were issued by the Company and its wholly-owned subsidiaries, PMI and Quigley Pharma, Inc. (collectively,
the “Obligors”), and funded on December 11, 2015. We incurred loan origination costs of $22,000 which were recorded
as a reduction of the Notes and the origination costs were charged to other income (expense) over the term of the loan. The Warrants
had an exercise term equal to three years and were exercisable commencing on the date of issuance. The fair value of the Warrants
at the date of grant was $14,000 which was recorded as a reduction of the Notes and is charged to other income (expense) over the
term of the loan.
The Notes bore interest
at the rate of 12% per annum, payable semi-annually and the principal was due and payable on June 15, 2017. The Notes could be
pre-paid at any time prior to maturity without penalty. The effective interest, inclusive of the Warrant and loan origination costs,
was 14.3% per annum. For the nine months ended September 30, 2017 and 2016, we charged to other income (expense) $54,000 and $105,000,
respectively, in connection with the Notes.
On March 29, 2017, in connection
with the sale of the Cold-EEZE
®
Business, we paid in full the remaining principal and accrued interest, in the total
amount of $1,553,000, due under the Notes. Of the $1,553,000 paid to the Investors, $69,000 was netted against the aggregate exercise
price of the Warrants, which were simultaneously exercised by the Investors.
In connection with the
issuance of the Notes, the Company entered into a security agreement with John E. Ligums, Jr., as collateral agent for the Investors
(the “Security Agreement”), to secure the timely payment and performance in full of the Company’s obligations
under the Notes. Under the Security Agreement, we granted to the collateral agent, for the benefit of the Investors a lien upon
and security interest in the property and assets listed as collateral in the Security Agreement, including without limitation,
all of our personal property, inventory, equipment, general intangibles, cash and cash equivalents, and proceeds. In connection
with the payoff of the Notes, the Security Agreement was terminated.
Note 5 – Transactions Affecting Stockholders’
Equity
Our authorized capital
stock consists of 50 million shares of Common Stock and 1 million shares of preferred stock, $.0005 par value (“Preferred
Stock”).
Preferred Stock
On June 16, 2015, our stockholders
approved the change to our state of incorporation from the State of Nevada to the State of Delaware pursuant to a plan of conversion
(the “Conversion Plan”) and the filing of a certificate of incorporation in the State of Delaware. The Preferred Stock
authorized under our certificate of incorporation may be issued from time to time in one or more series. As of September 30, 2017,
no shares of Preferred Stock have been issued. Our board of directors has the full authority permitted by law to establish, without
further stockholder approval, one or more series of Preferred Stock and the number of shares constituting each such series and
to fix by resolution, voting powers, preferences and relative, participating, optional and other special rights of each series
of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any. Subject to the limitation on the total
number of shares of Preferred Stock that we have authority to issue under our certificate of incorporation, the board of directors
is also authorized to increase or decrease the number of shares of any series, subsequent to the issue of that series, but not
below the number of shares of such series then-outstanding. In case the number of shares of any series is so decreased, the shares
constituting such decrease will resume the status that they had prior to the adoption of the resolution originally fixing the number
of shares of such series. We may amend from time to time our certificate of incorporation and bylaws to increase the number of
authorized shares of Preferred Stock or Common Stock or to make other changes or additions to our capital structure or the terms
of our capital stock.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 5 – Transactions
Affecting Stockholders’ Equity – continued
Stockholder Rights Plan
On September 8, 1998, our
Board of Directors declared a dividend distribution of Common Stock Purchase Rights (each individually, a “Right” and
collectively, the “Rights”) payable to our stockholders of record on September 25, 1998, thereby creating a Stockholder
Rights Plan (the “Rights Agreement”). The Plan was subsequently amended effective each of (i) May 23, 2008, (ii) August
18, 2009, (iii) June 18, 2014 and (iv) January 6, 2017. The Rights Agreement, as amended and restated, provides that each Right
entitles the stockholder of record to purchase from the Company that number of shares of Common Stock having a combined market
value equal to two times the Rights exercise price of $45. The Rights are not exercisable until the distribution date, which will
be the earlier of a public announcement that a person or group of affiliated or associated persons has acquired 15% or more of
the outstanding shares of Common Stock, or the announcement of an intention by a similarly constituted party to make a tender or
exchange offer resulting in the ownership of 15% or more of the outstanding shares of Common Stock (such person, the “acquirer”).
The Rights Agreement allows for an exemption for Ted Karkus, the Company’s Chairman and Chief Executive Officer, to acquire
up to 20% of our Common Stock without our Board of Directors declaring a dividend distribution.
The dividend has the effect
of diluting the acquirer by giving our other stockholders a 50% discount on our Common Stock’s current market value for exercising
the Rights. In the event of a cashless exercise of the Right and the acquirer has acquired less than 50% beneficial ownership of
the Company, a stockholder may exchange one Right for one share of Common Stock of the Company. The Rights Agreement, as amended,
includes a provision pursuant to which our Board of Directors may exempt from the provisions of the Rights Agreement an offer for
all outstanding shares of our Common Stock that the Board of Directors determines to be fair and not inadequate and to otherwise
be in the best interests of the Company and its stockholders, after receiving advice from one or more investment banking firms.
The expiration date of the Rights Agreement, as amended, is June 18, 2024.
Equity Line of Credit
On July 30, 2015, we entered
into a new equity line of credit agreement (such arrangement, the “2015 Equity Line”) with Dutchess Opportunity Fund
II, LP (“Dutchess”). Pursuant to the 2015 Equity Line, Dutchess committed to purchase, subject to certain restrictions
and conditions, up to 3,200,000 shares of our Common Stock, over a period of 36 months from the effectiveness of the registration
statement registering the resale of shares purchased by Dutchess pursuant to the Investment Agreement.
We may, at our discretion,
draw on the 2015 Equity Line from time to time, as and when we determine appropriate in accordance with the terms and conditions
of the 2015 Equity Line. The maximum number of shares that we are entitled to put to Dutchess in any one draw down notice shall
not exceed 500,000 shares with a purchase price calculated in accordance with the terms of the 2015 Equity Line. We may deliver
a notice for a subsequent put from time to time, following the one day pricing period for the prior put.
The purchase price shall
be set at ninety-five percent (95%) of the volume weighted average price (VWAP) of the Common Stock during the one trading day
immediately following our put notice. We have the right to withdraw all or any portion of any put, except that portion of the put
that has already been sold to a third party, including any portion of a put that is below the minimum acceptable price set forth
on the put notice, before the closing. In the event Dutchess receives more than a five percent (5%) return on the net sales for
a specific put, Dutchess must remit such excess proceeds to us; however, in the event Dutchess receives less than a five percent
(5%) return on the net sales for a specific put, Dutchess will have the right to deduct from the proceeds of the put amount on
the applicable closing date so Dutchess’s return will equal five percent (5%).
There are put restrictions
applied on days between the draw down notice date and the closing date with respect to that particular put. During such time, we
are entitled to deliver another draw down notice. In addition, Dutchess will not be obligated to purchase shares if Dutchess’
total number of shares beneficially held at that time would exceed 4.99% of the number of shares of Common Stock as determined
in accordance with Rule 13d-1(j) of the Securities Exchange Act of 1934, as amended. In addition, we are not permitted to draw
on the facility unless there is an effective registration statement to cover the resale of the shares.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 5 – Transactions
Affecting Stockholders’ Equity – continued
Pursuant to the terms of
the 2015 Equity Line, we are obligated to file one or more registration statements with the SEC to register the resale by Dutchess
of the shares of Common Stock issued or issuable under the 2015 Equity Line. In addition, we are obligated to use all commercially
reasonable efforts to have the registration statement declared effective by the SEC within 90 days after the registration statement
is filed. On August 4, 2015, we filed a registration statement for the underlying shares of the 2015 Equity Line with the SEC and
the registration statement was declared effective by the SEC on August 21, 2015.
At September 30, 2017,
we have 2,450,000 shares of our Common Stock available for sale, at our discretion, under the terms of our 2015 Equity Line and
covered pursuant to an effective registration statement.
The 2010 Equity Compensation Plan
On May 5, 2010, our stockholders
approved the 2010 Equity Compensation Plan which was subsequently amended, restated and approved by our stockholders on April 24,
2011, and further amended and approved by our stockholders on May 6, 2013 and May 24, 2016 (the “2010 Plan”). The 2010
Plan provides that the total number of shares of Common Stock that may be issued under the 2010 Plan is equal to 3.2 million shares,
including 900,000 shares that are authorized for issuance but unissued under a 1997 incentive stock option plan and 700,000 shares
added to the 2010 Plan effective May 24, 2016.
For the nine months ended
September 30, 2017, we granted to employees to acquire our Common Stock pursuant to the terms of 2010 Plan and aggregate of 625,000
options of which (i) 25,000 options are exercisable at $2.15 per share that vest over three years and (ii) 600,000 options are
exercisable at $2.00 per share that vest over four years. The assumptions used in determining the fair value of the 25,000 stock
options granted in the third quarter of Fiscal 2017 were (i) expected option life of 4.5 years, (ii) weighted average risk rate
of 1.62%, (iii) dividend yield of 0% and (iv) expected volatility of 38.59%. The assumptions used in determining the fair value
of the 600,000 stock options granted in the second quarter of Fiscal 2017 were (i) expected option life of 4.75 years, (ii) weighted
average risk rate of 1.81%, (iii) dividend yield of 0% and (iv) expected volatility of 44.51%. No options were granted for the
three months and nine months ended September 30, 2016.
For the three months and
nine months ended September 30, 2017, stock options of 592,000 and 682,000, respectively, were exercised pursuant to the 2010 Plan
and we derived net proceeds of $752,000 and $854,000, respectively. For the nine months ended September 30, 2016, there were no
stock options exercised. At September 30, 2017, there were 1,642,000 options outstanding under the 2010 Plan and 108,659 options
available to be issued pursuant to the terms of the 2010 Plan.
The 2010 Directors’
Equity Compensation Plan
On May 5, 2010, our stockholders
approved the 2010 Directors’ Equity Compensation Plan, which was subsequently amended and approved by stockholders on May
6, 2013. A primary purpose of the 2010 Directors’ Equity Compensation Plan is to provide us with the ability to pay all or
a portion of the fees of directors in restricted stock instead of cash. The 2010 Directors’ Equity Compensation Plan provides
that the total number of shares of Common Stock that may be issued under the 2010 Directors’ Equity Compensation Plan is
equal to 425,000. For the nine months ended September 30, 2017 and 2016, no shares were granted to our directors. At September
30, 2017, there were 147,808 shares of Common Stock that may be issued pursuant to the terms of the 2010 Directors’ Equity
Compensation Plan.
Treasury Stock
Stock Purchase Agreements
On June 12, 2017 we entered
into a Stock Purchase Agreement with each of Mark S. Leventhal, a former director of the Company, and certain other persons and
entities associated and/or affiliated with Mr. Leventhal (the “Leventhal Holders”), pursuant to which we purchased
all 1,061,980 shares of our Common Stock then held by the Leventhal Holders, representing an approximate 6.2% aggregate ownership
interest (based on 17.2 million shares of common stock outstanding as of June 12, 2017). Upon consummation of the transactions,
the Leventhal Holders ceased to hold any direct or indirect ownership interest in the Company.
Pursuant to the terms of
the Stock Purchase Agreements, the total consideration paid by us to the Leventhal Holders for their shares was $1,858,465, which
amount was equal to the product of (i) $1.75 multiplied by (ii) the number of shares purchased.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 5 – Transactions
Affecting Stockholders’ Equity – continued
Tender Offer
On
August 25, 2017, we announced a tender offer to purchase up to 4.0 million shares of our Common Stock at a price of $2.30 per share
(the “Tender Offer”). The number of shares proposed to be purchased in the tender offer represented approximately 24.7%
of the approximately 16.2 million shares of our Common Stock issued and outstanding as of August 21, 2017. The last reported sale
price of our Common Stock on August 15, 2017, the last full trading day before we announced the Tender Offer, was $2.13 per share.
The
Tender Offer expired on September 25, 2017. Subject to the terms of the Tender Offer, we accepted for purchase 4,323,335 shares
of our Common Stock, including all “odd lots” validly tendered, at a purchase price of $2.30 per share, for an aggregate
purchase price of approximately $9.9 million. Based on the final tabulation by American Stock Transfer & Trust Company, the
Depositary for the Tender Offer, 5,910,327 shares of our Common Stock were properly tendered and not withdrawn. We were informed
by the Depositary that, after giving effect to the priority for an aggregate amount of approximately 9,338 “odd lot”
shares, the final proration factor for the remaining tendered shares is approximately 73%. Prior to the Tender Offer, an investor,
BML Investment Partners, L.P. (“BLM”), owned 2,322,627 shares, or 13.6%, of our outstanding Common Stock. Pursuant
to the terms of the Tender Offer, BML tendered and sold 1,695,305 shares of our Common Stock. In addition, Ted Karkus, our Chairman
of the Board and Chief Executive Officer, Robert V. Cuddihy, Jr., our then Chief Operating Officer and Chief Financial Officer,
and one of our directors tendered and sold 364,954, 358,621 and 4,379 shares of Common Stock, respectively.
Note 6 – Income Taxes
At December 31, 2016,
there were $47.1 million in net operating loss carryforwards, subject to applicable limitations, available to us for federal purposes
which will expire beginning for the year ended December 31, 2020 through 2036. Additionally, there were $22.1 million in net operating
loss carryforwards, subject to limitations, available to us for state purposes which will expire beginning for the year ended December
31, 2020 through 2036.
Based upon preliminary
estimates, we believe that a significant portion of our income tax liability of $19.5 million arising from our taxable gain for
federal and state income tax purposes from the sale of the Cold-EEZE
®
Business will be offset to the extent of our
current year losses from operations, the write-off for tax purposes of the tax-basis of the Cold-EEZE
®
Business
and the available net operating loss carryforwards at the federal and state levels. However, for state income tax purposes, based
upon the available state net operating loss carryforwards and corresponding limitations, we estimate a net income tax expense arising
from the sale of the Cold-EEZE
®
Business of $1.3 million.
Utilization of net operating
loss carryforwards may be subject to limitations as set forth in Section 382 of the Internal Revenue Code (“Section 382”).
Based on our preliminary Section 382 analysis, we do not believe that our current net operating loss carryforwards are subject
to these limitations as of September 30, 2017. However, until we complete a final Section 382 analysis upon filing of our 2017
income tax return, there can be no assurances that our preliminary analysis is accurate or complete. Should we identify any limitations
upon the completion of our final Section 382 analysis, the impact could be material to our consolidated financial statements and
that we could incur additional income tax expense arising from the sale of the Cold-EEZE
®
Business.
For the nine months ended
September 30, 2017, we charged to discontinued operations $19.5 million for estimated federal and state income taxes arising from
the sale of the Cold-EEZE
®
Business and we have realized an income tax benefit from continuing operations of $18.1
million as a consequence of the utilization of the federal and state net operating losses.
Subsequent to the income
tax effects arising from the sale of the Cold-EEZE
®
Business, we will continue to have net operating loss carry-forwards
for federal income tax purposes. Until sufficient taxable income to offset the temporary timing differences attributable to operations,
and the tax deductions attributable to option, warrant and stock activities are assured, a valuation allowance equaling the total
deferred tax asset is being provided. As a consequence of the accumulated losses of the Company, we believe that this allowance
is required due to the uncertainty of realizing these tax benefits in the future.
Note 7– Commitments and Contingencies
Escrow Receivable
We have indemnification
obligations to Mylan under the Asset Purchase Agreement that may require us to make future payments to Mylan and other related
persons for any damages incurred by Mylan or such related persons as a result of any breaches of our representations, warranties,
covenants or agreements contained in the Asset Purchase Agreement, or arising from the Retained Liabilities (as such term is defined
in the Asset Purchase Agreement) or certain third party claims specified in the Asset Purchase Agreement. Generally, our representations
and warranties survive for a period of 24 months from the closing date, other than certain fundamental representations which survive
until the expiration of the applicable statute of limitations. There is a limited indemnification cap with respect to a majority
of the Company’s indemnification obligations under the Asset Purchase Agreement with the exception of claims for actual fraud,
the breach of any fundamental representations and certain other items, which have a larger indemnification cap (e.g., the purchase
price).
Pursuant to the terms of
the Asset Purchase Agreement, we, Mylan, and an escrow agent entered into an Escrow Agreement at closing, pursuant to which Mylan
deposited $5 million of the aggregate purchase price for the Cold-EEZE
®
Business into an escrow account established
with the Escrow Agent in order to satisfy, in whole or in part, certain of our indemnity obligations under the Asset Purchase Agreement.
If, on the 18
th
month anniversary of the closing date, there are funds remaining in the escrow account, then the escrow
account will be reduced by the difference, if a positive number, of (i) $2.5 million minus (ii) the aggregate amount of all escrow
claims asserted by Mylan prior to this date that have either been paid out of the escrow account or are pending as of such date,
and, within two business days of such date, the Escrow Agent will disburse such difference, if a positive number, to us. Within
two business days of the second anniversary of the closing date, the Escrow Agent will release any funds remaining in the escrow
account to us minus any amounts being reserved for escrow claims asserted by Mylan prior to such date. Upon the resolution of any
pending escrow claims, the Escrow Agent will, within two business days of receipt of joint instructions or a final order from a
court (as described in the Escrow Agreement) disburse such reserved amount to the parties entitled to such funds.
Management does not believe
that we will be subject to indemnity claims contemplated by the Asset Purchase Agreement. However, in the event that such a claim
is made, and if successful, we would be required to pay Mylan pursuant to the indemnification provisions of the Asset Purchase
Agreement which may reduce the amount we ultimately collect from escrow or could even require us to return a portion of the net
proceeds received from the sale of the Cold-EEZE
®
Division.
Manufacturing Agreement
In connection with the
Asset Purchase Agreement, the Company and its wholly-owned subsidiary, PMI, entered into a Manufacturing Agreement (the “Manufacturing
Agreement”) with Mylan. Pursuant to the terms of the Manufacturing Agreement, Mylan (or an affiliate or designee) will purchase
the inventory of the Company’s Cold-EEZE
®
brand and product line and PMI will manufacture certain products
for Mylan, as described in the Manufacturing Agreement, at prices that reflect current market conditions for such products and
include an agreed upon mark-up on our costs. Unless terminated sooner by the parties, the Manufacturing Agreement will remain in
effect until March 29, 2022. Thereafter, the Manufacturing Agreement may be renewed by Mylan for up to five successive one year
periods by providing notice of its intent to renew not less than 90 days prior to the expiration of the then-current term.
Transition Services Agreement
In connection with the Asset Purchase Agreement,
we entered into a transition services agreement with Mylan to provide litigation support, insurance coverage, supply chain, customer
support, finance, accounting, commercial advertising and packaging services, quality control, IT and research and development services
to Mylan for time periods ranging from two to nine months from the closing date. We will continue to incur certain operating costs
during the transition period to support Mylan.
ProPhase Labs, Inc.
and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(unaudited)
Note 7– Commitments
and Contingencies – continued
Future Obligations:
We have estimated future
minimum obligations over the next five years, including the remainder of Fiscal 2017, as follows (in thousands):
Fiscal Year
|
|
Employment
Contracts
|
|
2017
|
|
|
169
|
|
2018
|
|
|
675
|
|
2019
|
|
|
169
|
|
2020
|
|
|
-
|
|
2021
|
|
|
-
|
|
Total
|
|
$
|
1,013
|
|
Other Commitments:
On September 27, 2017,
we entered into an Employment Agreement Termination and Release Agreement with Robert V. Cuddihy, Jr., our former Chief Financial
Officer (the “Termination Agreement”). The Termination Agreement provides that Mr. Cuddihy’s employment agreement
will terminate effective September 30, 2017, and that on the expiration of the seven day revocation period from the date Mr. Cuddihy
signs the Termination Agreement, and subject to his not having revoked the Termination Agreement prior to that time, we would pay
Mr. Cuddihy a one-time lump sum payment of $55,000 by October 15, 2017. The Termination Agreement contains a general release of
claims in favor of us and other customary provisions. The one-time payment to Mr. Cuddihy was paid on October 20, 2017.
Note 8 – Earnings
(Loss) Per Share
Basic earnings (loss) per
share for continuing and discontinued operations are computed by dividing respective net income or loss attributable to common
stockholders by the weighted-average number of shares of our Common Stock outstanding for the period. Diluted earnings (loss) per
share reflects the potential dilution that could occur if securities or other contracts to issue Common Stock were exercised or
converted into Common Stock or resulted in the issuance of Common Stock that shared in the earnings of the entity. Diluted earnings
(loss) per share also utilize the treasury stock method which prescribes a theoretical buy-back of shares from the theoretical
proceeds of all options and warrants outstanding during the period. Options and warrants outstanding to acquire shares of our Common
Stock at September 30, 2017 and 2016 were 1,642,000 and 1,706,500, respectively.
For the three months ended
September 30, 2017 dilutive earnings (loss) per share is the same as basic earnings per share due to (i) the inclusion of Common
Stock, in the form of stock options and warrants (“Common Stock Equivalents”), would have an anti-dilutive effect on
the loss per share or (ii) there were no Common Stock Equivalents for the respective period. For the three months ended September
30, 2017 there were 504,170 Common Stock Equivalents which were in the money, that were excluded from the earnings (loss) per share
computation as a consequence of their anti-dilutive effect. For the nine months ended September 30, 2017 there were 456,728 Common
Stock Equivalents which were in the money, that were included in the fully diluted earnings per share computation.
For the three months ended
September 30, 2016 there were 519,162 Common Stock Equivalents which were in the money, that were included in the fully diluted
earnings per share computation. For the nine months ended September 30, 2016, for continuing operations dilutive earnings (loss)
per share is the same as basic earnings per share due to (i) the inclusion of Common Stock, in the form of stock options and warrants
(“Common Stock Equivalents”), would have an anti-dilutive effect on the loss per share or (ii) there were no Common
Stock Equivalents for the respective period. For the nine months ended September 30, 2016, there were 342,248, Common Stock Equivalents
which were in the money, that were excluded from the earnings (loss) p
er
share computation as a consequence of their anti-dilutive effect.
Note
9 – Subsequent Event
On
November 10, 2017, we announced our intention to commence a tender offer to purchase up to 1,700,000 shares of our Common Stock
at a price per share of $2.30 per share. We anticipate that the tender offer will be launched on or before November 20,
2017 and will remain open for at least 20 business days from initiation. If the maximum number of shares to be purchased in the
tender offer were in fact tendered, the number of shares that would then be purchased in the tender offer represents approximately
13.7% of our currently issued and outstanding common shares. If stockholders tender more than 1,700,000 shares, the maximum
sought in the tender offer, ProPhase will purchase shares from all stockholders who properly tender shares, on a pro rata basis,
based on the aggregate number of shares tendered. The NASDAQ Official Closing Price of our Common Stock on November 9, 2017 was
$2.11 per share. As of November 10, 2017, we have approximately $27.7 million in cash and cash equivalents and marketable securities,
a portion of which will be used to fund the tender offer.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
Item 2. Management’s
Discussion and Analysis of Financial Condition and Results of Operations.
The following discussion
and analysis should be read in conjunction with our interim unaudited condensed financial statements and related notes included
in this Quarterly Report on Form 10-Q (“Quarterly Report”) and the audited financial statements and notes thereto as
of and for the year ended December 31, 2016 and the related Management’s Discussion and Analysis of Financial Condition and
Results of Operations, both of which are contained in our Annual Report on Form 10-K filed with the Securities and Exchange Commission
(“SEC”) on February 24, 2017 (the “2016 Annual Report”). As used in this Quarterly Report, unless the context
suggests otherwise, “we,” “us,” “our,” or “ProPhase” refer to ProPhase Labs, Inc.
and its subsidiaries and consolidated variable interest entities, unless the context otherwise requires.
General
ProPhase was initially
organized in Nevada in July 1989. Effective June 18, 2015, we changed our state of incorporation from the State of Nevada to the
State of Delaware. We are a manufacturer, marketer and distributor of a diversified range of health care products and cold remedy
products that are offered to the general public. We are also engaged in the research and development of potential over-the-counter
(“OTC”) drug and natural base health products including supplements, personal care and cosmeceutical products.
On
September 26, 2017, the Company appointed Monica Brady as the Company’s Chief Accounting Officer, effective October 2, 2017.
In this capacity, Ms. Brady will serve as the Company’s principal financial officer and principal accounting officer.
Discontinued Operations
Prior to March 29, 2017,
our flagship OTC drug brand was Cold-EEZE
®
and our principal product was Cold-EEZE
®
cold remedy
zinc gluconate lozenges and various non-lozenge forms of our proprietary zinc gluconate formulation. On January 6, 2017, we signed
an asset purchase agreement (as amended, the “Asset Purchase Agreement”), by and among the Company, Meda Consumer
Healthcare Inc. (“MCH”) and Mylan Inc. (together with MCH, “Mylan”), for the sale of assets by us to Mylan.
The sale of assets (i) was subject to stockholder approval and other customary closing conditions and (ii) consisted principally
of the sale of our intellectual property rights and other assets relating to our Cold-EEZE
®
brand and product
line (collectively, referred to herein as the “Cold-EEZE
®
Business”) to Mylan, including all current
and pipeline over-the-counter allergy, cold, flu, multi-symptom relief and immune support treatments for adults and children to
the extent each is, or is intended to be, branded “Cold-EEZE
®
”, and all private label versions thereof,
including all formulations and derivatives thereof as set forth in the Asset Purchase Agreement.
A special meeting of our
stockholders was held on March 29, 2017 (the “Special Meeting”). At the Special Meeting, our stockholders approved
the sale of assets and the transactions contemplated by the Asset Purchase Agreement. Effective March 29, 2017, we completed the
sale of the Cold-EEZE
®
Business to Mylan. As a consequence of the sale of the Cold-EEZE
®
Business,
for the three and nine months ended September 30, 2017 and 2016, we have classified as discontinued operations (i) the gain from
the sale of the Cold-EEZE
®
Business, (ii) all income and expenses attributable to the Cold-EEZE
®
Business
and (iii) the income tax expense attributed to the sale of the Cold-EEZE
®
Business. Excluded from the sale of the
Cold-EEZE
®
Business were our accounts receivable and inventory, and we also retained all liabilities associated
with our Cold-EEZE
®
Business operations arising prior to March 29, 2017.
Continuing Operations and Product Development
We continue to own and
operate our manufacturing facility and manufacturing business in Lebanon, Pennsylvania, and our headquarters in Doylestown, Pennsylvania.
As part of the sale of the Cold-EEZE
®
Business, we entered into a manufacturing agreement with Mylan and our wholly-owned
subsidiary, Pharmaloz Manufacturing, Inc. (“PMI”), to supply various Cold-EEZE
®
lozenge products to
Mylan. In addition to the production service we provide to Mylan under the manufacturing agreement, we produce OTC drug and dietary
supplement lozenges and other products for other third party customers in addition to performing operational tasks such as warehousing,
customer order processing and shipping. We will seek to expand our contract manufacturing operations through developing new products
and creating new contract manufacturing opportunities.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
We are also pursuing a
series of new product development and pre-commercialization initiatives in the OTC dietary supplement category. Initial dietary
supplement product development activities were completed in the fourth quarter of Fiscal 2015 under the brand name of TK Supplements
®
.
The TK Supplements
®
product line comprises of three men’s health products: (i) Legendz XL
®
for sexual health, (ii) Triple Edge XL
®
, a daily energy booster plus testosterone support, and (iii) Super ProstaFlow
Plus
TM
for prostate and urinary health. We recently completed a broad series of clinical studies which support important
product claims which have now been incorporated in our product packaging and marketing communication. In addition to developing
direct-to-consumer (“Direct Response”) marketing strategies of Legendz XL
®
, we received initial product
acceptance and shipped into a national chain drug retailer and to several regional retailers during the Fiscal 2017.
If we are successful in
achieving retail distribution, we intend to ramp up the media spend for our Direct Response TV spots to support this retail launch
with the added benefit that it should also generate additional direct to consumer sales. As with any new product launch, we anticipate
losses from our TK Supplements
®
initiatives as we optimize our retail and direct response strategy. Therefore, no
assurance can be made that our new product efforts will be successful and/or profitable.
Additionally, we are active
in exploring new product technologies, applications, product line extensions, new contract manufacturing applications and other
new product opportunities consistent with our Company and brand image, and our standard of proven consumer benefit and efficacy.
On November 10, 2017,
we announced our intention to commence a tender offer to purchase up to 1,700,000 shares of our Common Stock at a price per share
of $2.30 per share. We anticipate that the tender offer will be launched on or before November 20, 2017 and will remain
open for at least 20 business days from initiation. If the maximum number of shares to be purchased in the tender offer were in
fact tendered, the number of shares that would then be purchased in the tender offer represents approximately 13.7% of our currently
issued and outstanding common shares. If stockholders tender more than 1,700,000 shares, the maximum sought in the tender
offer, ProPhase will purchase shares from all stockholders who properly tender shares, on a pro rata basis, based on the aggregate
number of shares tendered. The NASDAQ Official Closing Price of our Common Stock on November 9, 2017 was $2.11 per share. As of
November 10, 2017, we have approximately $27.7 million in cash and cash equivalents and marketable securities, a portion of which
will be used to fund the tender offer.
Seasonality of the Business
Our net sales are derived
principally from our OTC heath care and cold remedy products sold in the United States of America. Our sales are influenced by
and subject to fluctuations in the timing of purchase and the ultimate level of demand for our products which are a function of
the timing, length and severity of each cold season. Generally, a cold season is defined as the period of September to March when
the incidence of the common cold rises as a consequence of the change in weather and other factors. We generally experience in
the first, third and fourth quarter higher levels of net sales. Revenues are generally at their lowest levels in the second quarter
when customer demand generally declines.
Financial Condition and
Results of Operations
Results from Continuing
Operations for the Three Months Ended September 30, 2017
as Compared to the Three
Months Ended September 30, 2016
For the three months ended
September 30, 2017, net sales were $3.0 million as compared to $1.4 million for the three months ended September 30, 2016. The
increase in net sales from period to period is due principally to an increase in the timing of shipments of lozenge-based products
including shipments to Mylan under the terms of the Manufacturing and Supply Agreement dated March 29, 2017.
Cost of sales for the three
months ended September 30, 2017 were $2.6 million as compared to $1.2 million for the three months ended September 30, 2016. The
increase in the cost of sales for the three months ended September 30, 2017 as compared to the three months ended September 30,
2016 is due to increased shipments during the period. Gross margins are generally influenced by fluctuations in quarter-to-quarter
production volume, fixed production costs and related overhead absorption, raw ingredient costs, inventory mark to market write-downs,
if any, and the timing of shipments to customers which are factors of the seasonality of our sales activities and products.
Sales and marketing expense
for the three months ended September 30, 2017 was $150,000 as compared to $153,000 for the three months ended September 30, 2016.
The decrease of $3,000 in sales and marketing expense for the three months ended September 30, 2017 as compared to the three months
ended September 30, 2016 was principally due to a decrease in other sales costs.
General and administration
(“G&A”) expenses for the three months ended September 30, 2017 was $1.1 million as compared to $734,000 for the
three months ended September 30, 2016. The increase of $390,000 in G&A expense for the three months ended September 30, 2017
as compared to the three months ended September 30, 2016 was principally due to an increase in professional services, including
the costs associated with consummating the Tender Offer (defined below), and personnel expenses.
Research and development
costs during the three months ended September 30, 2017 were $60,000, as compared to $43,000 for the three months ended September
30, 2016. The increase in research and development costs was due principally to an increase in the amount and timing of our product
development expenditures.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
Other income (expense)
for the three months ended September 30, 2017 and 2016 was income of $125,000 compared to an expense of $53,000, respectively.
The income for the three month ended September 30, 2017 was principally the result of the $125,000 of interest income earned on
investments in marketable securities and money markets. Other expense for the three months ended September 30, 2016 was principally
comprised of the interest expense, inclusive of the warrant and loan origination costs, incurred pursuant to the terms of the secured
promissory notes which were repaid on March 29, 2017.
For the three months ended
September 30, 2016, results from operations for our Cold-EEZE
®
Business are classified as discontinued operations.
The carve out of the discontinued operations are derived from identifying and carving out the specific assets, liabilities, net
sales, cost of sales, operating expenses and interest expense associated with the Cold-EEZE
®
Business’s operations.
In addition, G&A, including personnel expenses, and bonuses, and research and development overhead costs incurred by us (for
which the discontinued operation benefits from such resources) are allocated to discontinued operations based upon the percentage
of the Cold-EEZE
®
Business’s net sales to our consolidated net sales. For the three months ended September
30, 2016, (i) we allocated $406,000 to G&A and (ii) $77,000 to research and development expenses, in the accompanying condensed
statements of operations. For the three months ended September 30, 2017, there was no costs incurred related to discontinued operations.
As a consequence of the
effects of the above, the net loss from continuing operations for the three months ended September 30, 2017 was $777,000, or ($0.05)
per share, as compared to a net loss of $786,000, or ($0.05) per share, for the three months ended September 30, 2016. Net income
from discontinued operations for the three months ended September 30, 2016 was $953,000, or $0.06 per share. Net loss for the three
months ended September 30, 2017 was $812,000, or ($0.05) per share, as compared to a net income of $167,000, or $0.01 per share,
for the three months ended September 30, 2016.
Financial Condition and
Results of Operations
Results from Continuing
Operations for the Nine Months Ended September 30, 2017
as Compared to the Nine
Months Ended September 30, 2016
For the nine months ended
September 30, 2017, net sales were $5.7 million as compared to $3.4 million for the nine months ended September 30, 2016. The increase
in net sales from period to period is due principally to an increase in the timing of shipments of lozenge-based products including
shipments to Mylan under the terms of the Manufacturing and Supply Agreement dated March 29, 2017.
Cost of sales for the nine
months ended September 30, 2017 were $5.1 million as compared to $2.9 million for the nine months ended September 30, 2016. The
increase in the cost of sales for the nine months ended September 30, 2017 as compared to the nine months ended September 30, 2016
is due to increased shipments during the period. Gross margins are generally influenced by fluctuations in quarter-to-quarter production
volume, fixed production costs and related overhead absorption, raw ingredient costs, inventory mark to market write-downs, if
any, and the timing of shipments to customers, which are factors of the seasonality of our sales activities and products.
Sales and marketing expense
for the nine months ended September 30, 2017 was $486,000 as compared to $686,000 for the nine months ended September 30, 2016.
The decrease of $200,000 in sales and marketing expense for the nine months ended September 30, 2017 as compared to the nine months
ended September 30, 2016 was principally due to a decrease in advertising costs.
G&A expenses for the
nine months ended September 30, 2017 were $3.5 million as compared to $2.9 million for the nine months ended September 30, 2016.
The increase of $629,000 in G&A expense for the nine months ended September 30, 2017 as compared to the nine months ended September
30, 2016 was principally due to the net effect of (i) a one-time charge for certain obsolete equipment, offset by (ii) a decrease
in professional and legal fees.
Research and development
costs during the nine months ended September 30, 2017 was $318,000 as compared to $202,000 for the nine months ended September
30, 2016. The increase in research and development costs for the nine months ended September 30, 2017 as compared to the nine months
ended September 30, 2016 was due principally to an increase in the amount and timing of our product development expenditures.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
Other income (expense)
for the nine months ended September 30, 2017 and 2016 was income of $222,000 compared to an expense of $158,000, respectively.
Other income (expense) for the nine month ended September 30, 2017 was principally the result of the net effects of (i) $150,000
of Mylan transition service fees earned by us and (ii) interest income of $125,000 offset by (iii) interest expense, inclusive
of the warrant and loan origination costs, of $54,000 incurred pursuant to the terms of the secured promissory notes. Other income
(expense) for the nine months ended September 30, 2016 was principally comprise of the interest expense, inclusive of the warrant
and loan origination costs, incurred pursuant to the terms of the secured promissory notes which were repaid on March 29, 2017.
For the nine months ended
September 30, 2017, we charged to discontinued operations $19.5 million for estimated federal and state income taxes arising from
the sale of the Cold-EEZE
®
Business and we have realized an income tax benefit from continuing operations of $18.1
million as a consequence of the utilization of the federal and state net operating losses.
For the nine months ended
September 30, 2017 and 2016, results from operations for our Cold-EEZE
®
Business are classified as discontinued
operations. The carve out of the discontinued operations are derived from identifying and carving out the specific assets, liabilities,
net sales, cost of sales, operating expenses and interest expense associated with the Cold-EEZE
®
Business’s
operations. In addition, G&A, including personnel expenses and bonuses, and research and development overhead expenses incurred
by us (for which the discontinued operation benefits from such resources) are allocated to discontinued operations based upon the
percentage of the Cold-EEZE
®
Business’s net sales to our consolidated net sales. For the nine months ended
September 30, 2017 and 2016, we allocated (i) $348,000 and $1.1 million, respectively, to G&A expenses and (ii) $52,000 and
$172,000, respectively, to research and development expenses, in the accompanying statements of operations.
As a consequence of the
sale of the Cold-EEZE
®
Business, we recorded a gain on the sale of the assets of $26.3 million, net of $19.5 million
of income tax.
As a result of
the effects of the above, the net income from continuing operations for the nine months ended September 30, 2017 was $14.7 million,
or $0.88 per share, as compared to a net loss of $3.4 million, or ($0.20) per share, for the nine months ended September 30, 2016.
Net income from discontinued operations for the nine months ended September 30, 2017 was $26.9 million, or $1.61 per share, as
compared to net income of $1.1 million, or $0.07 per share, for the nine months ended September 30, 2016. Net income for the nine
months ended September 30, 2017 was $41.6 million, or $2.49 per share, as compared to a net loss of $2.3 million, or ($0.13) per
share, for the nine months ended September 30, 2016.
Liquidity and Capital Resources
Our aggregate cash, cash
equivalents and marketable securities as of September 30, 2017 were $27.5 million compared to $441,000 at December 31, 2016. The
increase of $27.1 million in our cash balance for the nine months ended September 30, 2017 was principally due to the net effect
of (i) the net proceeds of $40.8 million, excluding the $5.0 million escrow receivable, derived from the sale of the Cold-EEZE
®
Business, (ii) proceeds from the exercise of stock options and warrants of $923,000, offset by (iii) payments of $1.5 million to
retire the secured promissory notes, (iv) payments of $11.8 million for the repurchase our Common Stock pursuant to the terms of
the Tender Offer and certain other stock purchase agreements and (v) capital expenditures of $202,000.
Tender Offer
On
August 25, 2017, we announced a tender offer to purchase up to 4.0 million shares of our Common Stock at a price of $2.30 per share
(the “Tender Offer”). The number of shares proposed to be purchased in the tender offer represented approximately 24.7%
of the approximately 16.2 million shares of our Common Stock issued and outstanding as of August 21, 2017. The last reported sale
price of our Common Stock on August 15, 2017, the last full trading day before we announced the Tender Offer, was $2.13 per share.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
The
Tender Offer expired on September 25, 2017. Subject to the terms of the Tender Offer, we accepted for purchase 4,323,335 shares
of our Common Stock, including all “odd lots” validly tendered, at a purchase price of $2.30 per share, for an aggregate
purchase price of approximately $9.9 million. Based on the final tabulation by American Stock Transfer & Trust Company, the
Depositary for the Tender Offer, 5,910,327 shares of our Common Stock were properly tendered and not withdrawn. We were informed
by the Depositary that, after giving effect to the priority for an aggregate amount of approximately 9,338 “odd lot”
shares, the final proration factor for the remaining tendered shares is approximately 73%. Prior to the Tender Offer, an investor,
BML Investment Partners, L.P. ("BLM"), owned 2,322,627 shares, or 13.6%, of our outstanding Common Stock. Pursuant
to the terms of the Tender Offer, BML tendered and sold 1,695,305 shares of our Common Stock. In addition, Ted Karkus, our
Chairman of the Board and Chief Executive Officer, Robert V. Cuddihy, Jr., our then Chief Operating Officer and Chief Financial
Officer, and one of our directors tendered and sold 364,954, 358,621 and 4,379 shares of Common Stock, respectively.
Stock Purchase Agreements
On June 12, 2017 we entered
into a Stock Purchase Agreement with each of Mark S. Leventhal, a former director of the Company, and certain other persons and
entities associated and/or affiliated with Mr. Leventhal (the “Leventhal Holders”), pursuant to which we purchased
all 1,061,980 shares of our Common Stock then held by the Leventhal Holders, representing an approximate 6.2% aggregate ownership
interest (based on 17.2 million shares of common stock outstanding as of June 12, 2017). Upon consummation of the transactions,
the Leventhal Holders ceased to hold any direct or indirect ownership interest in the Company.
Pursuant to the terms of
the Stock Purchase Agreements, the total consideration paid by us to the Leventhal Holders for their shares was $1,858,465, which
amount was equal to the product of (i) $1.75 multiplied by (ii) the number of shares purchased.
Equity Line of Credit
On July 30, 2015, we entered
into a new equity line of credit agreement (such arrangement, the “2015 Equity Line”) with Dutchess Opportunity Fund
II, LP (“Dutchess”). Pursuant to the 2015 Equity Line, Dutchess committed to purchase, subject to certain restrictions
and conditions, up to 3,200,000 shares of our Common Stock, over a period of 36 months from the effectiveness of the registration
statement registering the resale of shares purchased by Dutchess pursuant to the Investment Agreement.
We may, at our discretion,
draw on the 2015 Equity Line from time to time, as and when we determine appropriate in accordance with the terms and conditions
of the 2015 Equity Line. The maximum number of shares that we are entitled to put to Dutchess in any one draw down notice shall
not exceed 500,000 shares with a purchase price calculated in accordance with the 2015 Equity Line. We may deliver a notice for
a subsequent put from time to time, following the one day pricing period for the prior put.
The purchase price shall
be set at ninety-five percent (95%) of the volume weighted average price (VWAP) of the Common Stock during the one trading day
immediately following our put notice. We have the right to withdraw all or any portion of any put, except that portion of the put
that has already been sold to a third party, including any portion of a put that is below the minimum acceptable price set forth
on the put notice, before the closing. In the event Dutchess receives more than a five percent (5%) return on the net sales for
a specific put, Dutchess must remit such excess proceeds to us; however, in the event Dutchess receives less than a five percent
(5%) return on the net sales for a specific put, Dutchess will have the right to deduct from the proceeds of the put amount on
the applicable closing date so Dutchess’s return will equal five percent (5%).
There are put restrictions
applied on days between the draw down notice date and the closing date with respect to that particular put. In addition, Dutchess
will not be obligated to purchase shares if Dutchess’ total number of shares beneficially held at that time would exceed
4.99% of the number of shares of Common Stock as determined in accordance with Rule 13d-1(j) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). In addition, we are not permitted to draw on the facility unless there is an
effective registration statement to cover the resale of the shares.
Pursuant to the terms of
the 2015 Equity Line, we are obligated to file one or more registrations statements with the SEC to register the resale by Dutchess
of the shares of Common Stock issued or issuable under the 2015 Equity Line. In addition, we are obligated to use all commercially
reasonable efforts to have the registration statement declared effective by the SEC within 90 days after the registration statement
is filed. On August 4, 2015, we filed a registration statement for the underlying shares of the 2015 Equity Line with the SEC and
the registration statement was declared effective by the SEC on August 21, 2015.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
At September 30, 2017,
we have 2,450,000 shares of our Common Stock available for sale, at our discretion, under the terms of the 2015 Equity Line and
covered pursuant to an effective registration statement.
General
As a consequence of the
seasonality of our business, we realize variations in operating results and demand for working capital from quarter to quarter.
As of September 30, 2017, we had working capital of approximately $31.3 million and 2,450,000 shares of Common Stock available
for sale under the 2015 Equity line. We believe our current working capital, cash required to fund operations and available 2015
Equity Line is an acceptable and adequate level of working capital to support our business for at least the next twelve months.
We have indemnification
obligations to Mylan under the Asset Purchase Agreement that may require us to make future payments to Mylan and other related
persons for any damages incurred by Mylan or such related persons as a result of any breaches of our representations, warranties,
covenants or agreements contained in the Asset Purchase Agreement, or arising from the Retained Liabilities (as such term is defined
in the Asset Purchase Agreement) or certain third party claims specified in the Asset Purchase Agreement. Generally, our representations
and warranties survive for a period of 24 months from the closing date, other than certain fundamental representations which survive
until the expiration of the applicable statute of limitations. There is a limited indemnification cap with respect to a majority
of the Company’s indemnification obligations under the Asset Purchase Agreement with the exception of claims for actual fraud,
the breach of any fundamental representations and certain other items, which have a larger indemnification cap (e.g., the purchase
price).
Pursuant to the terms of
the Asset Purchase Agreement, we, Mylan, and an escrow agent entered into an Escrow Agreement at closing, pursuant to which Mylan
deposited $5 million of the aggregate purchase price for the Cold-EEZE
®
Business into an escrow account established
with the Escrow Agent in order to satisfy, in whole or in part, certain of our indemnity obligations under the Asset Purchase Agreement.
If, on the 18
th
month anniversary of the closing date, there are funds remaining in the escrow account, then the escrow
account will be reduced by the difference, if a positive number, of (i) $2.5 million minus (ii) the aggregate amount of all escrow
claims asserted by Mylan prior to this date that have either been paid out of the escrow account or are pending as of such date,
and, within two business days of such date, the Escrow Agent will disburse such difference, if a positive number, to us. Within
two business days of the second anniversary of the closing date, the Escrow Agent will release any funds remaining in the escrow
account to us minus any amounts being reserved for escrow claims asserted by Mylan prior to such date. Upon the resolution of any
pending escrow claims, the Escrow Agent will, within two business days of receipt of joint instructions or a final order from a
court (as described in the Escrow Agreement) disburse such reserved amount to the parties entitled to such funds.
Our current cash position
supports our (i) operations, (ii) reorganization costs associated with the sale of the Cold-EEZE
®
Business, (iii)
current research and development expenditures and (iv) initial operating losses related to new products, including the launch of
Legendz XL
®
. Additionally, we are active in exploring new product technologies, applications, product line extensions,
new contract manufacturing applications and other new business opportunities consistent with our Company and brand image, and our
standard of proven consumer benefit and efficacy.
Management is not aware of any other trends,
events or uncertainties that have or are reasonably likely to have a material negative impact upon our (i) short-term or long-term
liquidity, or (ii) net sales or income from continuing operations. Any challenge to our patent or trademark rights could have a
material adverse effect on our future; however, we are not aware of any condition that would make such an event probable. Our business
is subject to seasonal variations thereby impacting our liquidity and working capital during the course of our fiscal year.
To the extent that we do
not generate sufficient cash from operations, our cash balances will decline. We may also use our cash to explore and/or acquire
new product technologies, applications, product line extensions, new contract manufacturing applications and other new business
opportunities. In the event that our available cash is insufficient to support such initiatives, we may need to incur indebtedness
or issue Common Stock to finance plans for growth. Volatility in the credit markets and the liquidity of major financial institutions
may have an adverse effect on our ability to fund our business strategy through borrowings, under either existing or newly created
instruments in the public or private markets on terms that we believe to be reasonable, if at all.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
Off-Balance Sheet Arrangements
It is not our usual business
practice to enter into off-balance sheet arrangements such as guarantees on loans and financial commitments and retained interests
in assets transferred to an unconsolidated entity for securitization purposes. We have no off-balance sheet arrangements that have,
or are reasonably likely to have, a material current or future effect on our financial condition, changes in financial condition,
revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.
Critical Accounting Policies and Estimates
The
preparation of financial statements in conformity with accounting principles generally accepted in the United States (“GAAP”)
requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure
of contingent liabilities at the dates of the financial statements and the reported amounts of revenues and expenses during the
reporting periods. Actual results could differ from those estimates. Our significant accounting policies are described in Note
2 of Notes to Condensed Consolidated Financial Statements included under Item 1 of this Part I.
However, certain accounting
policies are deemed “critical”, as they require management’s highest degree of judgment, estimates and assumptions.
These accounting estimates and disclosures have been discussed with Audit Committee of our Board of Directors. A discussion of
our critical accounting policies, the judgments and uncertainties affecting their application and the likelihood that materially
different amounts would be reported under different conditions or using different assumptions are as follows:
Revenue
Recognition – Sales Allowances
When providing for the appropriate
sales returns, allowances, cash discounts and cooperative incentive promotion costs (“Sales Allowances”), we apply
a uniform and consistent method for making certain assumptions for estimating these provisions. These estimates and assumptions
are based on historical experience, current trends and other factors that management believes to be relevant at the time the financial
statements are prepared. Management reviews the accounting policies, assumptions, estimates and judgments on a quarterly basis.
Actual results could differ from those estimates.
Pursuant
to the terms of the Asset Purchase Agreement, we are responsible for and continue to accept product returns of the Cold-EEZE
®
Business for product shipped prior to March 30, 2017. Additionally, pursuant to the terms of the Asset Purchase Agreement,
we allocated and, in June 2017, issued a credit to Mylan in an aggregate of $400,000 for future sales returns and allowances arising
from certain product returns that were sold by us prior to March 30, 2017.
As of September 30, 2017
and December 31, 2016, we included a provision for sales allowances of zero and $108,000, respectively. Additionally, accrued advertising
and other allowances as of September 30, 2017 included (i) $902,000 for estimated future sales returns and (ii) $371,000 for cooperative
incentive promotion costs. As of December 31, 2016, accrued advertising and other allowances included (i) $1.2 million for estimated
future sales returns and (ii) $1.5 million for cooperative incentive promotion costs.
Income Taxes
As of December 31, 2016,
we have net operating loss carry-forwards of approximately $47.1 million for federal purposes that will expire beginning in Fiscal
2020 through 2036. Additionally, there are net operating loss carry-forwards of $22.1 million for state purposes that will expire
beginning in Fiscal 2020 through 2036.
Based upon preliminary
estimates, we believe that a significant portion of our income tax liability of $19.5 million arising from our taxable gain for
federal and state income tax purposes from the sale of the Cold-EEZE
®
Business will be offset to the extent of our
current year losses from operations, the write-off for tax purposes of the tax-basis of the Cold-EEZE
®
Business
and the available net operating loss carryforwards at the federal and state levels. However, for state income tax purposes, based
upon the available state net operating loss carryforwards and corresponding limitations, we estimate a net income tax expense arising
from the sale of the Cold-EEZE
®
Business of $1.3 million.
Utilization of net operating
loss carryforwards may be subject to limitations as set forth in Section 382 of the Internal Revenue Code (“Section 382”).
Based on our preliminary Section 382 analysis, we do not believe that our current net operating loss carryforwards are subject
to these limitations as of September 30, 2017. However, until we complete a final Section 382 analysis upon filing of our 2017
income tax return, there can be no assurances that our preliminary analysis is accurate or complete. Should we identify any limitations
upon the completion of our final Section 382 analysis, the impact could be material to our consolidated financial statements and
that we could incur additional income tax expense arising from the sale of the Cold-EEZE
®
Business.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
Until sufficient taxable
income to offset the temporary timing differences attributable to operations, and the tax deductions attributable to option, warrant
and stock activities are assured, a valuation allowance equaling the total deferred tax asset is being provided. As a consequence
of the accumulated losses of the Company, we believe that this allowance is required due to the uncertainty of realizing these
tax benefits in the future.
Recently Issued Accounting
Standards
In May 2014, the Financial
Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-09, “Revenue
from Contracts with Customers”, on revenue recognition. The new standard provides for a single five-step model to
be applied to all revenue contracts with customers as well as requires additional financial statement disclosures that will enable
users to understand the nature, amount, timing and uncertainty of revenue and cash flows relating to customer contracts.
Companies have an option to use either a retrospective approach or cumulative effect adjustment approach to implement the standard.
This ASU, as amended, is effective for fiscal years and interim periods within those years beginning after December 15, 2017.
We plan to adopt the provisions of the new standard in the first quarter of 2018. The Company is utilizing a comprehensive approach
to access the impact of the guidance our revenue. Additionally, the Company is evaluating the impact of the new guidance on disclosures,
as well as the impact on controls to support the recognition. We do not believe that its adoption will not have a material impact
on our consolidated financial statements.
In February 2016, the FASB
issued ASU No. 2016-02 “Leases”. The new standard will require most leases to be recognized on the balance sheet which
will increase reported assets and liabilities. Lessor accounting remains substantially similar to current guidance. The new standard
is effective for annual and interim periods in fiscal years beginning after December 15, 2018, which for us is the first quarter
of fiscal 2019 and mandates a modified retrospective transition method. We do not intend to early adopt and are currently assessing
the impact of this update, but preliminarily believe that its adoption will not have a material impact on our consolidated financial
statements.
In
April 2016, the FASB issued ASU No. 2016-09, “Improvements to Employee Share-Based Payment Accounting”. The new
standard simplifies several aspects of the accounting for employee share-based payment transactions, including the accounting
for income taxes, forfeitures, and statutory tax withholding requirements, as well as classification in the statement of cash
flows. We adopted the standard in January 2017 with no material impact on our consolidated financial statements.
In June 2016, the FASB
issued ASU No. 2016-13, “Financial Instruments—Credit Losses.” The standard modifies the impairment model for
most financial assets, including trade accounts receivables and loans, and will require the use of an “expected loss”
model for instruments measured at amortized cost. Under this model, entities will be required to estimate the lifetime expected
credit loss on such instruments and record an allowance to offset the amortized cost basis of the financial asset, resulting in
a net presentation of the amount expected to be collected on the financial asset. The effective date of the standard is for fiscal
years beginning after December 15, 2019 with early adoption permitted. We are currently evaluating the impact adoption of this
update will have on our consolidated financial statements.
In August 2016, the FASB
issued ASU No. 2016-15, “Statement of Cash Flows: Classification of Certain Cash Receipts and Cash Payments”
.
The new standard attempts to reduce diversity in practice in how cash receipts and cash payments are presented and classified in
the statement of cash flows. ASU No. 2016-15 provides guidance on eight specific cash flow issues. The new guidance will be effective
for fiscal years beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted including
adoption in an interim period. We do not intend to early adopt and we are currently assessing the impact adoption of this update
will have on our consolidated financial statements.
In October 2016, the FASB
issued ASU No. 2016-16, “Income Taxes: Intra-Entity Transfers of Assets Other than Inventory”. The new standard requires
entities should recognize the income tax consequences of an asset other than inventory when the asset transfer occurs. The new
guidance will be effective for fiscal years beginning after December 15, 2017 and requires a modified retrospective adoption through
a cumulative effect adjustment directly to retained earnings as of the beginning of the period of adoption. We are currently evaluating
the impact adoption of this update will have on our consolidated financial statements.
ProPhase Labs, Inc. and Subsidiaries
Management’s Discussion and Analysis
of
Financial Condition and Results of Operations
Forward-Looking Statements
This Quarterly Report contains
“forward looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities
Act”) and Section 21E of the Exchange Act. These forward looking statements relate to future events or our future financial
performance and involve known and unknown risks, uncertainties and other factors that may cause our or our industry’s actual
results, levels of activity, performance or achievements to be materially different from any future results, levels of activity,
performance or achievements expressed or implied by the forward-looking statements. Many of these factors are beyond our ability
to predict. Given the risks and uncertainties surrounding forward-looking statements, you should not place undue reliance on these
statements. Forward-looking statements typically are identified by use of terms such as “anticipate”, “believe”,
“plan”, “expect”, “intend”, “may”, “will”, “should”, “estimate”,
“predict”, “potential”, “continue” and similar words although some forward-looking statements
are expressed differently. This Quarterly Report may contain forward-looking statements attributed to third parties relating to
their estimates regarding the growth of our markets. You are cautioned that such forward looking statements are not guarantees
of future performance and that all forward-looking statements address matters that involve risk and uncertainties, and there are
many important risks, uncertainties and other factors that could cause our actual results, levels of activity, performance, achievements
and prospects, as well as those of the markets we serve, to differ materially from the forward-looking statements contained in
this Quarterly Report.
Such risks and uncertainties
include, but are not limited to:
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The ability of our management to successfully implement our business plan and strategy;
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Our ability to fund our operations including the cost and availability of capital and credit;
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Our ability to compete effectively, including our ability to maintain and increase our markets and/or market share in the markets in which we do business;
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Our ability to grow our manufacturing business and operate it profitably;
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Our ability to successfully develop and commercialize our existing products and new products without leveraging the Cold-EEZE
®
brand name;
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Changes in our retail and distribution customers strategic business plans including, but not limited to, (i) expansions, mergers, and/or consolidations, (ii) retail shelf space allocations for products within each outlet and in particular the homeopathic and health care category in which we compete, (iii) changes in their private label assortment and (iv) product selections, distribution allocation, merchandising programs and retail pricing of our products as well as competitive products;
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The general financial and economic uncertainty, fluctuations in consumer confidence and the strength of the United States economy, and their impacts on our business including demand for our products;
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Our ability to protect our proprietary rights;
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Our continued ability to comply with regulations relating to our current products and any new products we develop, including our ability to effectively respond to changes in laws and regulations or the interpretation thereof including changing market rules and evolving federal, state and regional laws and regulations;
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Potential disruptions in our ability to manufacture our products or our access to raw materials;
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Seasonal fluctuations in demand for our products;
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Our ability to attract, retain and motivate our key employees;
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Other risks identified in this Quarterly Report.
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You should also consider
carefully the statements under other sections of this Quarterly Report and our 2016 Annual Report, as well as in other documents
we file from time to time with the SEC which address additional risks that could cause our actual results to differ from those
set forth in any forward-looking statements. Our forward-looking statements speak only as the date of this Quarterly Report. We
undertake no obligation to publicly update or review any forward-looking statements, whether as a result of new information, future
developments or otherwise.