Fuse Medical, Inc 10-K for FY2020
Fuse Medical, Inc. (FZMD)
About this 10-K
Fuse Medical, Inc filed this 10-K on March 31, 2021, covering the fiscal year ended December 31, 2020 (FY2020).
Headline figures
Fiscal year ended December 31, 2020, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $21.4M
- down 6.6% from $22.9M a year earlier
- Net loss
- $1.43M
- compared with a net loss of $3.32M a year earlier
- Diluted EPS
- -$0.02
- compared with -$0.05 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2020
or
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number: 000-10093
Fuse Medical, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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59-1224913 |
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(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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1565 N. Central Expressway, Suite 220, Richardson, TX |
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75080 |
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(Address of principal executive offices) |
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(Zip Code) |
(469) 862-3030
Registrant’s telephone number, including area code
Securities registered pursuant to section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
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Common Stock |
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FZMD |
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OTCPink |
Securities registered pursuant to Section 12(g) of the Act:
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐ Yes ☒ No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ☐ Yes ☒ No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. ☒ Yes ☐ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). ☒ Yes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” “small reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has selected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether or not the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ☐ Yes ☒ No
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter: $611,173.
Indicate the number of shares outstanding of each of the registrant’s classes of Common Stock, as of the latest practicable date: As of March 8, 2021, 73,124,458 shares of the registrant’s Common Stock were outstanding.
INDEX
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ITEM 1. |
4 |
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ITEM 1A. |
12 |
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ITEM 1B. |
22 |
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ITEM 2. |
22 |
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ITEM 3. |
22 |
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ITEM 4. |
22 |
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ITEM 5. |
23 |
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ITEM 6. |
23 |
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ITEM 7. |
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. |
23 |
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ITEM 7A. |
31 |
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ITEM 8. |
32 |
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ITEM 9. |
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. |
32 |
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ITEM 9A. |
32 |
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ITEM 9B. |
32 |
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ITEM 10. |
33 |
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ITEM 11. |
36 |
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ITEM 12. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS. |
41 |
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ITEM 13. |
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE. |
42 |
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ITEM 14. |
45 |
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ITEM 15. |
46 |
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50 |
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In this Annual Report on Form 10-K (“Annual Report”), the terms “we,” “us,” “our” and “Fuse” mean Fuse Medical, Inc. and our subsidiaries.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report and in particular, the descriptions of our “Business” set forth in “Item 1. Business,” “Item 1A. Risk Factors,” and “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” contain or incorporate a number of forward-looking statements within the meaning of Section 27A of the Securities Exchange Act of 1933, as amended, the (“Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended, the (“Exchange Act”), including statements regarding:
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the plans and objectives of management for future operations; |
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a projection of income (including income/loss), earnings (including earnings/loss) per share, capital expenditures, dividends, capital structure or other financial items; |
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our future financial performance, including any such statement contained in a discussion and analysis of financial condition by management or in the results of operations included pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”); |
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our ability to meet the financial covenants under our credit facility; |
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our ability to maintain profitability and the need to raise additional funding; |
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our beliefs regarding potential clinical and other health benefits of our medical products; and |
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the assumptions underlying or relating to any statement described above. |
Terms such as “may,” “might,” “would,” “should,” “could,” “project,” “estimate,” “pro-forma,” “predict,” “potential,” “strategy,” “anticipate,” “attempt,” “develop,” “plan,” “help,” “believe,” “continue,” “intend,” “expect,” “future,” and terms of similar import (including the negative of any of the foregoing) may be intended to identify forward-looking statements. However, not all forward-looking statements may contain one or more of these identifying terms.
Forward-looking statements are not meant to predict or guarantee actual results, performance, events, or circumstances and may not be realized because they are based upon our current projections, plans, objectives, beliefs, expectations, estimates, and assumptions and are subject to a number of risks, uncertainties and other influences, many of which we have no control over. Actual results and the timing of certain events and circumstances may differ materially from those described by the forward-looking statements as a result of these risks and uncertainties. Factors that may influence or contribute to the inaccuracy of the forward-looking statements or cause actual results to differ materially from expected or desired results may include, without limitation: (i) our inability to obtain adequate debt or equity financing; (ii) the duration of, and government response to, the novel coronavirus SARS CoV-2 (“COVID-19”) pandemic, including limitations on performing elective surgeries; (iii) the significant length of time and resources associated with the development of our products and related insufficient cash flows and resulting illiquidity; (iv) our inability to expand our business; (v) significant government regulation of our business and the healthcare industry; (vi) lack of product diversification; (vii) existing or increased competition; (viii) results of arbitration and litigation; (ix) stock volatility and illiquidity; and (x) our failure to implement our business plans or strategies. Descriptions of some of the risks and uncertainties that could cause our actual results to differ materially from those described by the forward-looking statements in this Annual Report appear in “Item 1A, Risk Factors” (“Risk Factors”) and elsewhere in this 2020 Annual Report.
Readers are cautioned not to place undue reliance on forward-looking statements because of the risks and uncertainties related to them and to the Risk Factors. We disclaim any obligation to update the forward-looking statements contained in this Annual Report to reflect any new information, future events or circumstances, or otherwise.
Readers should read this Annual Report in conjunction with (i) the discussion under the caption Risk Factors, (ii) our audited consolidated financial statements as of December 31, 2020, and 2019, and the related notes therein included in this Annual Report, beginning on page F-1 (“Financial Statements”), and (iii) other documents which we may file from time to time with the SEC.
Explanatory Note
We are a “smaller reporting company” as that term is defined in Rule 12b-2 promulgated under the Exchange Act. Accordingly, this Annual Report will reflect the reporting requirements of smaller reporting companies as set forth in Regulation S-K, promulgated under the Exchange Act.
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Overview
We are a manufacturer and national distributor of medical devices. We provide a broad portfolio of orthopedic implants including:
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Foot and Ankle: internal and external fixation products; |
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Orthopedics: upper and lower extremity plating and total joint reconstruction implants; |
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Sports Medicine: soft tissue fixation and augmentation for sports medicine procedures; |
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Spine: full spinal implants for trauma, degenerative disc disease, and deformity indications (collectively, we refer to these bulleted products as “Orthopedic Implants”). |
We also provide a wide array of osteo-biologics and regenerative products, which include human allografts, tendons, synthetic skin and bone substitute materials, and regenerative tissues and fluids, which we refer to as (“Biologics”).
All of our medical devices are approved by the U.S. Food and Drug Administration (“FDA”) for sale in the United States, and all of our Biologics suppliers are licensed tissue banks accredited by the American Association of Tissue Banks. Additionally, we are an FDA-registered medical device specification developer and repackager/relabeler, and manufacturer of record, (a “Manufacturer”). We are seeking to grow our manufacturing operations, both by internal product development and by acquiring existing FDA approved devices and related intellectual property.
Impact of COVID-19
The novel coronavirus COVID-19 global pandemic has presented and continues to present significant risks to our business plan. During our first quarter 2020 and as a response to COVID-19, the Governor of Texas declared a state of disaster and issued an executive order requiring hospitals to defer all elective surgeries. The order was effective March 19, 2020 through April 22, 2020.
On April 17, 2020, the Governor of Texas issued an additional executive order permitting hospital facilities to resume elective surgeries effective April 22, 2020 with certain restrictions, including maintaining a percentage of available beds for potential COVID-19 related patients. The disaster declaration in Texas and similar declarations in other governmental jurisdictions, specifically the temporary deferral of all elective surgeries, adversely impacted our results of operations for the second quarter 2020, in particular, the periods prior to April 22, 2020.
A second executive order suspending elective surgeries and procedures was issued on June 30, 2020. It was amended on July 9, 2020 to encompass all counties within the 11 Trauma Service Areas in Texas. This executive order was lifted on September 17, 2020 and elective surgeries and procedures in these areas were resumed.
During the second quarter of 2020, we implemented strategic cost reductions in order to mitigate the impact of COVID-19 on our business. Included in these initiatives were company-wide salary reductions of all our employees, including our executive officers. As of December 31, 2020, a majority of the reduced salaries have been reinstated.
Despite the adverse effects of COVID-19 on our business in the second quarter of 2020, our net income for the year ended December 31, 2020 increased over the year December 31, 2019. However, our revenue declined for the year ended December 31, 2020 compared to 2019. We believe that our revenues for the third and fourth quarters of 2020 were strengthened due to performance of deferred second quarter elective surgeries in the third and fourth quarters of 2020. However, the strength of those two quarters did not entirely compensate for the second quarter deterioration due to COVID-19. The majority of our products support patient conditions which are degenerative in nature. While most of our products are used in procedures that are currently considered elective, the procedures are typically necessary for a patient to restore mobility, reduce pain and increase quality of life. Other cases are emergency in nature involving trauma.
Products
We believe our broad portfolio of Orthopedic Implants and Biologics provide high-quality products to assist surgeons with positive patient outcomes and are cost-effective solutions for our customers.
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Currently Marketed Products – Orthopedic Implants
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Foot and Ankle - We offer comprehensive product offerings of internal and external fixation for forefoot, midfoot and hindfoot reconstruction. Our solutions include CPM Cannulated Headed and Headless Screws, CPM Snap Off Screws, FuseFix HammerToe and our Fuse TyWedge System. |
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Orthopedics - We offer joint reconstruction systems for upper and lower extremities, which include the Sterizo Total Knee and Total Hip Replacement Systems, as well as the Arrow total and reverse total shoulder system. |
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Sports Medicine - We offer our line of Fuse Suture Anchors and Interference Screws as well as multiple products for soft tissue fixation augmentation, including ACL and Rotator Cuff Repair (RCR). |
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Spine - We offer a full line of spinal products for cervical and thoracolumbar fusion, including our Fuse Pedicle Screw system for open and MIS procedures, our Fuse ACP Anterior Cervical Plating System, our Maxim X-Treme PEEK Cervical Interbodies and CPM PEEK Titanium Coated Cervical and Lumbar Interbodies. |
Currently Marketed Products – Biologics
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Osteobiologics - We offer an extensive product portfolio of allograft products for all categories for fracture management and fusion indications. |
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Regenerative - We offer amniotic membrane and fluids for use in conjunction with surgical procedures. |
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Autologous - We offer concentration systems for Platelet Rich Plasma (PRP) systems and Bone Marrow Aspirate Concentrate (BMAC). |
Customers and Product Distribution Channels
Retail. Under our retail distribution model, (“Retail Model”), we sell directly to our end customers, which consist of hospitals and medical facilities, utilizing (i) our full-time sales representatives whom we employ or engage as independent contractors and (ii) independent sales representatives who work on a non-exclusive basis. In both instances, we pay the sales representative a commission with respect to sales made by the representative. We refer to sales through our Retail Model as Retail Cases (which are herein referred to as “Retail Cases”). For the years ended December 31, 2020 and 2019, our Retail Cases generated, in aggregate, approximately 89% and 83%, respectively, of our revenues.
Wholesale. Under our wholesale distribution model, (“Wholesale Model”), we sell our products directly to independent distributors rather than to hospitals and medical facilities who are the ultimate end customer. We do not pay commissions from any sales to independent distributor. We refer to our sales through our Wholesale Model as Wholesale Cases, (which are herein referred to as “Wholesale Cases”). For the years ended December 31, 2020 and 2019, our Wholesale Cases generated, in aggregate, approximately 11% and 17%, respectively, of our revenues.
For the year ended December 31, 2020, our largest customer represented approximately 12.6% of our consolidated net revenues. We continue to develop and expand our customer portfolio through building relationships with key medical professionals in the expanding geographic areas we serve. For the year ended December 31, 2020, we were successful in adding 10 new distributors. For the three months ended March 31, 2021, we were successful in adding 7 new distributors. We provide on-going product training and support to our sales representatives, independent sales representatives and contractors and independent distributors along with product manufacturer marketing materials to ensure customer satisfaction with the products we offer. We believe focusing on these key areas is essential to growing our customer base and increasing revenues; particularly with respect to Retail Cases.
Manufacture and Supply
We rely on third-party suppliers for the manufacturing or machining of all our products. Outsourcing product manufacturing reduces our need for capital investment and reduces operational expense. Additionally, outsourcing provides expertise and capacity necessary to scale up or down based on demand for our products. We select our suppliers to ensure that all of our products are safe, effective, adhere to all applicable regulations, are of the highest quality, and meet our supply needs. We employ a rigorous supplier assessment, qualification, and selection process targeted to suppliers that meet the requirements of the FDA, and International Organization for Standardizations, (“ISO”), and quality standards supported by our internal policies and procedures. Our quality assurance process monitors and maintains supplier performance through qualification and periodic supplier reviews and audits.
Our suppliers consist of:
Manufacturers. We purchase product directly from the manufacturer on a wholesale basis and serve as a stocking distributor for the manufacturer with respect to the product. We then sell the product utilizing our Retail and Wholesale Models and determine the sales price to the end customer.
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Our primary supplier of Biologics is Vivex Biomedical, Inc. a biomedical company focused on cellular therapies that treat orthopedic, spine, wound, and soft tissue indications. With respect to Orthopedic Implants, our significant suppliers are Modal Manufacturing, LLC for lower extremities, FH Orthopedics, Inc. for shoulder replacement systems, and CoreLink Surgical, Inc. for medical devices used in spine surgeries.
Private label manufacturers. We purchase product directly from the manufacturer on an exclusive basis. We then sell the products under one of our own proprietary brands utilizing our Retail Model or our Wholesale Model. With respect to private label products, the manufacturer owns the applicable 510(k) which is an FDA clearance of a premarket notification requesting permission for commercial distribution under Section 510(k) of the Federal Food, Drug and Cosmetic Act (“FDCA”).
We contract with Tyber Medical, LLC, Maruho Medical, LLC, Solco Biomedical Co., Ltd, and Modal Manufacturing, LLC, four manufacturers of Orthopedic Implants, to develop and expand our private label initiatives, including our foot and ankle, and spine and sports medicine products. During 2020, we expanded our private label products through key relationships and suppliers. Our Orthopedic Implants private label portfolio consists of:
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our internal fixation product line for foot and ankle procedures, which includes CPM Headed and Headless Cannulated Screws, CPM Snap Off Screws, the FuseFix Hammertoe implant, and Fuse TyWedge System for Evans & Cotton procedures; |
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our Cervical ACIF, and Lumbar PLIF/TLIF interbody spacer product line that features titanium-coated surfaces to promote osseointegration during spinal fusion surgeries; |
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our Fuse Suture Anchor product line for sports medicine procedures, which includes Galen, Kopis and Vida suture anchors delivery system for soft tissue fixation (“Fuse Suture Anchors”); |
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our Fuse ACP Anterior Cervical Plating System and |
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our Sterizo Total Knee Replacement System (“Sterizo Total Knee System”). |
During December 2020, we launched our amniotic and umbilical membrane product line, which includes FuseChoiceTM, FuseChoiceTM Plus, and FuseChoiceTM Max. We have three more additional Biologics launches planned for 2021 which include:
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FuseChoice DermTM Non-Fenestrated Dermal Matrix, |
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FusePureTM Demineralized Bone Matrix, Strips and Cubes, and |
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FuseTrilogy TM Viable Bone Matrix, an osteoconductive, osteoinductive & osteogenic DMSO-free bone void filler |
We are also evaluating the opportunity to license certain manufacturers’ technology for our own branding opportunities that would allow us to expand our branded product portfolio offerings.
Contract manufacturers. For products for which we are the Manufacturer of record on the applicable 510(k), we outsource our manufacturing and machining needs to contract manufacturers. Our approved contract manufacturers are all ISO13485 certified and machine and produce our products to our specifications. All finished products go through quality and final inspection at our facility. We then sell the products under one of our own proprietary brands utilizing our Retail and Wholesale Models. Our FDA cleared products for which we are the Manufacturer of record are:
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Maxim X-Treme PEEK Cervical Interbody System |
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Fuse Pedicle Screw System |
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OrbitumTM Staple System (initial launch scheduled for May 2021) |
Product Development
To further our business objectives, we use our knowledge of the healthcare industry and leverage our relationships with key suppliers, manufacturers, facility materials managers, and distribution channels. In 2020, we continued to utilize our Scientific Advisory Boards, (“SABs”), to assist with our product development and design input. Members of our SABs include the heads of teaching hospitals and universities, clinical residency programs, and clinical fellowship programs at some of the most respected institutions in the United States. Our SABs have provided valuable insight for both our products coming to market as well as the design and development of new products in our pipeline. We continuously review our product lines, both internally and with our SABs, proactively evaluating product trends to ensure we offer a comprehensive, high-quality, and cost-effective selection of Orthopedic Implants. We believe these efforts will enable us to become a leader in our industry and to expand our existing customer base.
Public Recognition
Our strategic acquisitions of CPM Medical Consultants, LLC (“CPM”) and Palms Springs Partners, LLC d/b/a Maxim Surgical (“Maxim”) significantly expanded our product lines, operations, and competitive reach. For the third year in a row, Fuse was named
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and ranked (moving up 46 spaces from the previous year to number 43 in 2020) on Deloitte’s 2020 Technology Fast 500TM, an annual ranking of the fastest growing North American companies in the technology, media, telecommunications, life sciences and energy technology sectors. We were also named and ranked number 136 of the top 150 largest public companies by revenue in the Dallas-Fort Worth metropolitan area, by the Dallas Morning News for the third year in a row.
Competition
As a Manufacturer, distributor, and wholesaler of medical devices, we primarily compete with other distributors, as well as large, vertically-integrated medical device manufacturers that enjoy well-established distribution channels, national sales networks, direct sales models, and participation in large group purchasing organizations (“GPOs”) contracted with major hospitals and surgery centers.
We believe that our ability to offer a diverse selection of products across five different product categories, sets us apart from other distributors and gives us a competitive advantage against distributors who are not able to manufacture their own products, as well as manufacturers who are limited to distributing their own products within a specific product category.
Generally, we view Stryker Corporation, Smith & Nephew plc, and Orthofix Medical Inc., as examples of our large vertically-integrated competitors. We believe those competitors, and companies like them, only distribute products they manufacture and have significant costs related to new product research and development and organizational support. Conversely, in addition to our own products, we sell a broad portfolio of specialized third-party manufacturers’ products and have significantly lower costs related to research and development for such third-party products, as well as significantly lower costs for organizational support. Thus, we believe our competitive advantage lies primarily with our single-source fulfillment sales model, allowing us to offer a broader assortment of several manufacturers’ products. We also believe that we generally realize higher gross margins than our competitors due to the lower product costs associated with being a Manufacturer and private labeler.
We contract primarily with small- and medium-sized manufacturers of Orthopedic Implants and Biologics that are subject to FDA compliance and approval standards. We believe these manufacturers are highly innovative and cost effective because of their streamlined sales infrastructures and substantially lower research and development costs. Because of our organizational structure, large distribution footprint, and sales models, we tend to align well with our specialized suppliers’ competitive strategies, which we believe is the foundation for additional significant relationships with such suppliers than our competitors.
We believe the competition in our industry is primarily driven by continued mergers and acquisitions of smaller manufacturers and distributors by larger, vertically-integrated companies that produce, market and distribute medical devices, Orthopedic Implants, and Biologics. Our vertically-integrated competitors benefit from their ability to control costs for the devices they manufacture and distribute. Moreover, we believe the market in which we operate is sensitive to changes in third-party and government payor reimbursements and, competitive discount pricing. We believe that our industry will continue to see increased mergers and acquisitions because the market is significantly fragmented with numerous medical device manufacturers, distributors, and specialized suppliers offering similar product portfolios throughout the United States.
Intellectual Property
We maintain stocking distribution agreements providing for exclusive distribution rights in certain geographic areas and use of associated trademarks, service marks, and tradenames for the sale and promotion of the products we offer, which generally have durations of one (1) to three (3) years, subject to renewal terms. Furthermore, we require employees, independent contractors, consultants, and advisors to execute agreements, with varying terms of one (1) to three (3) years, that assign to us the intellectual property existing and generated from their work. In 2020, we applied and were granted trademark approval for our GalenTM and KopisTM suture anchors, part of our Fuse Suture Anchor product line.
Government Regulation
Our products are subject to extensive regulation by the FDA and other U.S. federal and state regulatory bodies. Our products are subject to regulation under the FDCA, and in the case of our tissue products, also under the Public Health Service Act, (“PHSA”). To ensure that our products are safe and effective for their intended use, the FDA regulates, among other things, the following activities that we or our partners perform and will continue to perform:
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product design and development; |
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product testing; |
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non-clinical and clinical research; |
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product manufacturing; |
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product labeling; |
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product storage; |
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premarket clearance or approval; |
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advertising and promotion; |
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product marketing, sales and distribution; |
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import and export; and |
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post-market surveillance, including reporting deaths or serious injuries related to products and certain product malfunctions. |
Government Regulation – Medical Devices
FDA’s Premarket Clearance and Approval Requirements. Unless an exemption applies, each medical device we seek to commercially distribute in the United States requires either FDA clearance of a premarket notification requesting permission for commercial distribution under Section 510(k) of the FDCA (“510(k) Clearance”), or approval of a premarket approval application (“PMA”). The information that must be submitted to the FDA in order to obtain clearance or approval to market a new medical device varies depending on how the medical device is classified by the FDA. Under the FDCA medical devices are classified as Class I, Class II, or Class III depending on the degree of risk associated with the use of the device and the extent of manufacturer and regulatory controls deemed to be necessary by the FDA to reasonably ensure their safety and effectiveness.
Class I devices are those with the lowest risk to the patient for which safety and effectiveness can be reasonably assured by adherence to a set of regulations, referred to as General Controls, which require compliance with the applicable portions of the FDA’s Quality System Regulation (“QSR”), facility registration and product listing, reporting of adverse events and malfunctions, and appropriate, truthful and non-misleading labeling and promotional materials. Some Class I devices also require 510(k) Clearance by the FDA, though most Class I devices are exempt from the premarket notification requirements. Class II devices are those that are subject to the General Controls, as well as Special Controls, which can include performance standards, product-specific guidance documents and post-market surveillance. Manufacturers of most Class II devices are required to submit to the FDA a premarket notification under Section 510(k) of the FDCA. Class III devices include devices deemed by the FDA to pose the greatest risk such as life-supporting or life-sustaining devices, or implantable devices, in addition to those deemed not substantially equivalent following the 510(k) process. The safety and effectiveness of Class III devices cannot be reasonably assured solely by compliance with the General Controls and Special Controls described above. Therefore, these devices must receive an approved PMA. Both 510(k)s and PMAs are subject to the payment of user fees at the time of submission for FDA review.
If the FDA determines that the device is not “substantially equivalent” to a predicate device following submission and review of a 510(k) premarket notification, or if the manufacturer is unable to identify an appropriate predicate device and the new device or new use of the device presents a moderate or low risk, the device sponsor may either pursue a PMA approval or seek reclassification of the device through the de novo process. The products we currently market in the U.S. are Class I and Class II devices marketed under FDA 510(k) clearance.
510(k) Clearance Pathway. To obtain 510(k) Clearance, we must submit a 510(k) premarket notification demonstrating that the proposed device is substantially equivalent to a device legally marketed in the United States. A predicate device is a legally marketed device that is not subject to premarket approval, i.e., a device that was legally marketed prior to May 28, 1976 (pre-amendments device) and for which a PMA is not required, a device that has been reclassified from Class III to Class II or I, or a device that was found substantially equivalent through the 510(k) clearance process. To be “substantially equivalent,” the proposed device must have the same intended use as the predicate device, and either have the same technological characteristics as the predicate device or have different technological characteristics and not raise different questions of safety or effectiveness than the predicate device. Clinical data is sometimes required to support substantial equivalence.
The FDA’s goal is to review and act on each 510(k) premarket notification within 90 days of submission, but the process usually takes from nine to twelve months, and it may take longer if the FDA requests additional information. Most 510(k) premarket clearances do not require supporting data from clinical trials, but the FDA may request such data. If the FDA agrees that the device is substantially equivalent, it will grant clearance to commercially market the device.
After a device receives 510(k) Clearance, any modification that could significantly affect its safety or effectiveness, or that would constitute a new or major change in its intended use, will require a new 510(k) Clearance or, depending on the modification, require premarket approval. The FDA requires each manufacturer to determine whether the proposed change requires the submission of a 510(k) premarket notification or PMA, but the FDA can review any such decision and can disagree with a manufacturer’s determination. If the FDA disagrees with a manufacturer’s determination, the FDA can require the manufacturer to cease marketing and/or recall the modified device until 510(k) Clearance or PMA is obtained. If the FDA requires us to seek a new 510(k) Clearance or PMA for any modifications to a previously cleared product, we may be required to cease marketing or recall the modified device until we obtain this clearance or approval. Also, in these circumstances, we may be subject to significant fines or penalties. We have made and plan to continue to make enhancements to our products for which we have not submitted 510(k)s premarket notifications or PMAs, and we will consider on a case-by-case basis whether a new 510(k) premarket notification or PMA is necessary.
The FDA began to consider proposals to reform its 510(k) Clearance process in 2011, and such proposals could include increased requirements for clinical data and a longer review period. Specifically, in response to industry and healthcare provider concerns
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regarding the predictability, consistency and rigor of the 510(k) regulatory pathway, the FDA initiated an evaluation of the 510(k) program, and as part of the Food and Drug Administration Safety and Innovation Act (“FDASIA”), Congress reauthorized the Medical Device User Fee Amendments with various FDA performance goal commitments and enacted several “Medical Device Regulatory Improvements” and miscellaneous reforms, which are further intended to clarify and improve medical device regulation both pre- and post-clearance and approval. Further, in December 2016, the 21st Century Cures Act (“Cures Act”), was signed into law. The Cures Act, among other things, is intended to modernize the regulation of devices and spur innovation, but its ultimate implementation is unclear.
Pervasive and Continuing FDA Regulation. After a device is placed on the market, numerous FDA and other regulatory requirements continue to apply. These include:
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registration and listing requirements, which require manufacturers to register all manufacturing facilities and list all medical devices placed into commercial distribution; |
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the QSR, which requires manufacturers, including third-party contract manufacturers, to follow stringent design, testing, control, supplier/contractor selection, documentation, record maintenance and other quality assurance controls, during all aspects of the manufacturing process and to maintain and investigate complaints; |
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labeling regulations and unique device identification requirements; |
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advertising and promotion requirements; |
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restrictions on sale, distribution or use of a device; |
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FDA prohibitions against the promotion of products for uncleared or unapproved “off-label” uses; |
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medical device reporting obligations, which require that manufacturers submit reports to the FDA of devices that may have caused or contributed to a death or serious injury or malfunctioned in a way that would likely cause or contribute to a death or serious injury if it were to reoccur; |
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medical device correction and removal reporting regulations, which require that manufacturers report to the FDA field corrections and product recalls or removals if undertaken to reduce a risk to health posed by the device or to remedy a violation of the FDCA that may present a risk to health; |
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device tracking requirements; and |
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other post-market surveillance requirements, which apply when necessary to protect the public health or to provide additional safety and effectiveness data for the device. |
Failure to comply with applicable regulatory requirements can result in enforcement action by the FDA, which may include any of the following:
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warning letters and untitled letters; |
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fines, injunctions, consent decrees, and civil penalties; |
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recalls, withdrawals, administrative detention, or seizure of products; |
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operating restrictions, partial suspension or total shutdown of production; |
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withdrawals of 510(k) Clearances or PMA approvals that have already been granted; |
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refusal to grant 510(k) Clearance or PMA approvals of new products; and/or |
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criminal prosecution. |
Our facilities, records and manufacturing processes are subject to periodic announced and unannounced inspections by the FDA to evaluate compliance with applicable regulatory requirements.
Regulation of Human Cells, Tissues, and Cellular and Tissue-based Products. Certain of our products are regulated as human cells, tissues, and cellular and tissue-based products (“HCT/Ps”). Section 361 of the PHSA authorizes the FDA to issue regulations to prevent the introduction, transmission or spread of communicable disease. HCT/Ps regulated as “361” HCT/Ps are subject to requirements relating to registering facilities and listing products with the FDA, screening and testing for tissue donor eligibility, or Good Tissue Practice, when processing, storing, labeling, and distributing HCT/Ps, including required labeling information, stringent record keeping, and adverse event reporting, among other applicable requirements and laws. If the HCT/P is minimally manipulated, is intended for homologous use only and meets other requirements, the HCT/P will not require 510(k) Clearance, PMA approval, a Biologics license application, or other premarket authorization from the FDA before marketing.
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Environmental Matters
Our facilities and operations are subject to extensive federal, state, and local environmental and occupational health and safety laws and regulations. These laws and regulations govern, among other things, air emissions; wastewater discharges; the generation, storage, handling, use and transportation of hazardous materials; the handling and disposal of hazardous wastes; the cleanup of contamination; and the health and safety of our employees. Under such laws and regulations, we are required to obtain permits from governmental authorities for some of our operations. If we violate or fail to comply with these laws, regulations or permits, we could be fined or otherwise sanctioned by regulators. We could also be held responsible for costs and damages arising from any contamination at our past or present facilities or at third-party waste disposal sites. We cannot completely eliminate the risk of contamination or injury resulting from hazardous materials, and we may incur material liability as a result of any contamination or injury.
Compliance with Certain Applicable Statutes
We are subject to various federal and state laws pertaining to healthcare fraud and abuse, including anti-kickback laws, false claims laws, criminal health care fraud laws, physician payment transparency laws, data privacy and security laws and foreign corrupt practice laws. Violations of these laws are punishable by criminal and/or civil sanctions, including, in some instances, fines, imprisonment and, within the United States, exclusion from participation in government healthcare programs, including Medicare, Medicaid and Veterans Administration health programs. These laws are administered by, among others, the U.S. Department of Justice, the Office of Inspector General of the Department of Health and Human Services and state attorney generals. Many of these agencies have increased their enforcement activities with respect to medical device manufacturers in recent years.
The federal Anti-Kickback Statute, prohibits persons from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in exchange for or to induce either the referral of an individual, or the furnishing, arranging for or recommending a good or service, for which payment may be made in whole or in part under federal healthcare programs, such as the Medicare and Medicaid programs. The Anti-Kickback Statute is broad and prohibits many arrangements and practices that are lawful in businesses outside of the healthcare industry. For example, the definition of “remuneration” has been broadly interpreted to include anything of value, including gifts, discounts, the furnishing of supplies or equipment, credit arrangements, payments of cash, waivers of payments, ownership interests and providing anything at less than its fair market value. In addition, the Patient Protection and Affordable Health Care Act, which, as amended by the Health Care and Education Reconciliation Act (collectively referred to as “ACA”). ACA, among other things, amends the intent requirement of the federal Anti-Kickback Statute. A person or entity no longer needs to have actual knowledge of this statute or specific intent to violate it. In addition, ACA provides that the government may assert that a claim including items or services resulting from a violation of the Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the federal False Claims Act.
In implementing the Anti-Kickback Statute, the Department of Health and Human Services Office of Inspector General (“OIG”), has issued a series of regulations, known as the safe harbors, which began in July 1991. These safe harbors set forth provisions that, in circumstances where all the applicable requirements are met, will assure healthcare providers and other parties that they will not be prosecuted under the Anti-Kickback Statute. The failure of a transaction or arrangement to fit precisely within one or more safe harbors does not necessarily mean that it is illegal or that prosecution will be pursued. However, conduct and business arrangements that do not fully satisfy all requirements of an applicable safe harbor may result in increased scrutiny by government enforcement authorities such as the OIG. Penalties for violations of the Anti-Kickback Statute include criminal penalties and civil sanctions such as fines, imprisonment and possible exclusion from Medicare, Medicaid and other federal healthcare programs. Many states have anti- kickback laws that are similar to the federal law, some of which apply to the referral of patients for healthcare items or services reimbursed by any source, and may also result in penalties, fines, sanctions for violations, and exclusions from state or commercial programs.
The federal False Claims Act prohibits persons from knowingly filing or causing to be filed a false or fraudulent claim to, or the knowing use of false statements to obtain payment from, the federal government. Private suits filed under the False Claims Act, known as qui tam actions, can be brought by individuals on behalf of the government. These individuals, sometimes known as “relators” or, more commonly, as “whistleblowers,” may share in any amounts paid by the entity to the government in fines or settlement. The number of filings of qui tam actions has increased significantly in recent years, causing more healthcare companies to have to defend a False Claim Act action. If an entity is determined to have violated the federal False Claims Act, it may be required to pay up to three times the actual damages sustained by the government, plus civil penalties of between $10,000 to $22,000 for each separate false claim and may be subject to exclusion from Medicare, Medicaid and other federal healthcare programs. Various states have also enacted similar laws modeled after the federal False Claims Act which apply to items and services reimbursed under Medicaid and other state programs, or, in several states, apply regardless of the payor.
The Health Insurance Portability and Accountability Act (“HIPAA”), created two new federal crimes: healthcare fraud and false statements relating to healthcare matters. The healthcare fraud statute prohibits knowingly and willfully executing a scheme to defraud any healthcare benefit program, including private payors. The ACA changed the intent requirement of the healthcare fraud statute to such that a person or entity no longer needs to have actual knowledge of this statute or specific intent to violate it. A violation of this statute is a felony and may result in fines, imprisonment or possible exclusion from Medicare, Medicaid and other federal healthcare programs. The false statements statute prohibits knowingly and willfully falsifying, concealing or covering up a material fact or
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making any materially false, fictitious or fraudulent statement in connection with the delivery of or payment for healthcare benefits, items or services. A violation of this statute is a felony and may result in similar sanctions.
ACA also includes various provisions designed to significantly strengthen fraud and abuse enforcement in addition to those changes discussed above. Among these additional provisions include increased funding for enforcement efforts and new “sunshine” provisions that require us to report and disclose to the Centers for Medicare and Medicaid Services (“CMS”), any payment or “transfer of value” made or distributed to physicians or teaching hospitals. These sunshine provisions also require certain GPOs, including physician-owned distributors, to disclose physician ownership information to CMS. We and other device manufacturers are required to collect and annually report specific data on payments and other transfers of value to physicians and teaching hospitals. There are various state laws and initiatives that require device manufacturers to disclose to the appropriate regulatory agency certain payments or other transfers of value made to physicians, and in certain cases prohibit some forms of these payments, with the risk of fines for any violation of such requirements.
HIPAA also includes privacy and security provisions designed to regulate the use and disclosure of “protected health information”, (“PHI”), which is health information that identifies a patient and that is held by a health care provider, a health plan or health care clearinghouse. We are not directly regulated by HIPAA, but our ability to access PHI for purposes such as marketing, product development, clinical research or other uses is controlled by HIPAA and restrictions placed on health care providers and other covered entities. HIPAA was amended in 2009 by the Health Information Technology for Economic and Clinical Health Act (“HITECH”), which strengthened the rule, increased penalties for violations and added a requirement for the disclosure of breaches to affected individuals, the government and in some cases the media. We must carefully structure any transaction involving PHI to avoid violation of HIPAA and HITECH requirements.
Almost all states have adopted data security laws protecting personal information including social security numbers, state issued identification numbers, credit card or financial account information coupled with individuals’ names or initials. We must comply with all applicable state data security laws, even though they vary extensively, and must ensure that any breaches or accidental disclosures of personal information are promptly reported to affected individuals and responsible government entities. We must also ensure that we maintain compliant, written information security programs or run the risk of civil or even criminal sanctions for non-compliance as well as reputational harm for publicly reported breaches or violations.
If any of our operations are found to have violated or be in violation of any of the laws described above and other applicable state and federal fraud and abuse laws, we may be subject to penalties, among them being civil and criminal penalties, damages, fines, exclusion from government healthcare programs, and the curtailment or restructuring of our operations.
Third-Party Reimbursement
In the United States, healthcare providers generally rely on third-party payors, principally private insurers and governmental payors such as Medicare and Medicaid, to cover and pay for all or part of the cost of a surgery in which our medical devices are used. We expect that sales volumes and prices of our products will depend in large part on the continued availability of reimbursement from such third-party payors. These third-party payors may deny reimbursement if they determine that a device used in a procedure was not medically necessary in accordance with cost-effective treatment methods, as determined by the third-party payor, or was used for an unapproved indication. Particularly in the United States, third-party payors continue to carefully review, and increasingly challenge, the prices charged for procedures and medical products. Medicare coverage and reimbursement policies are developed by CMS, the federal agency responsible for administering the Medicare program, and its contractors. CMS establishes these Medicare policies for medical products and procedures and such policies are periodically reviewed and updated. While private payors vary in their coverage and payment policies, the Medicare program is viewed as a benchmark. Medicare payment rates for the same or similar procedures vary due to geographic location, nature of the facility in which the procedure is performed (i.e., teaching or community hospital) and other factors. We cannot assure you that government or private third-party payors will cover and provide adequate payment for the procedures in which our products are used. ACA and other reform proposals contain significant changes regarding Medicare, Medicaid and other third-party payors.
Among these changes was the imposition of a 2.3% excise tax on domestic sales of medical devices that went into effect on January 1, 2013. This tax has resulted in a significant increase in the tax burden on our industry. In December 2015, the U.S. Congress adopted, and President Obama signed into law, the Consolidated Appropriations Act of 2016. Among other things, this legislation put in place a two-year moratorium on the device tax through the end of 2017. The moratorium was extended to an additional two years beginning January 1, 2019 and ending December 31, 2020. Other elements of the ACA include numerous provisions to limit Medicare spending through reductions in various fee schedule payments and by instituting more sweeping payment reforms, such as bundled payments for episodes of care, the establishment of “accountable care organizations” under which hospitals and physicians will be able to share savings that result from cost control efforts, comparative effectiveness research, value-based purchasing, and the establishment of an independent payment advisory board.
We believe that the overall escalating cost of medical products and services has led to, and will continue to lead to, increased pressures on the healthcare industry to reduce the costs of products and services. We cannot assure you that government or private third-party payors will cover and provide adequate payment for the procedures using our products. In addition, it is possible that future
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legislation, regulation, or reimbursement policies of third-party payors will adversely affect the demand for procedures using our products or our ability to sell our products on a profitable basis. The unavailability or inadequacy of third-party payor coverage or reimbursement could have a significant adverse effect on our business, operating results and financial condition.
Compliance Training
We maintain a company-wide compliance program for all employees, vendors, and contractors, which is managed by our Compliance Officer who is responsible for developing compliance programs, reviewing our policies, overseeing adherence to those policies, and advising management on possible risks. Our compliance policies include general ethical business practices as well as specific operating policies and training to ensure compliance with relevant and applicable healthcare laws and regulations, including the laws referenced above.
Employees
We engage AmBio Staffing, LLC (“AmBio”), a Texas licensed professional employment organization (“PEO”), to provide us with payroll processing, employee benefit administration, and related human capital services. As of March 8, 2021, AmBio supported approximately 43 full time equivalents (“FTE”). Of those 43 FTEs, 35 FTEs directly support us, 7 FTEs support the operations of other companies, and we share 1 FTE with other related companies.
Corporate and Available Information
We are a Delaware corporation. We were initially incorporated in 1968 as American Metals Service, Inc., a Florida corporation. In July 1999, American Metals Service, Inc. changed its name to GolfRounds.com, Inc. and was redomiciled to Delaware through a merger. Effective May 28, 2014, GolfRounds.com amended its certificate of incorporation to change its name to Fuse Medical, Inc., Fuse Medical, LLC, an unrelated entity, then merged with and into a wholly-owned subsidiary of Fuse Medical, Inc. The transaction was accounted for as a reverse merger. Fuse Medical, Inc. was the legal acquirer, and Fuse Medical, LLC was deemed the accounting acquirer. During 2015, certificates of termination were filed for Fuse Medical, LLC and its two subsidiaries.
On December 19, 2016 (the “Change-in-Control Date”), we entered into a stock purchase agreement (the “Stock Purchase Agreement”) by and between NC 143 Family Holdings, LP, a Texas limited partnership (“NC 143”) which is controlled by Mark W. Brooks (“Mr. Brooks”), the Chairman of our Board of Directors (“Board”) and our President; and Reeg Medical Industries, Inc., a Texas corporation, (“RMI”), which is owned and controlled by Christopher C. Reeg, (“Mr. Reeg”) our Chief Executive Officer and Secretary. The closing of the Stock Purchase Agreement resulted in a change-in-control of Fuse whereby Messrs. Brooks and Reeg beneficially acquired, immediately after the Change-In-Control Date, approximately 61.4% of our issued and outstanding shares of common stock, par value $0.01 per share (“Common Stock”).
On December 31, 2017 we completed the acquisition of CPM in which we purchased all outstanding membership units of CPM the (“CPM Acquisition”). In the CPM Acquisition, Fuse was the legal acquirer, and for accounting purposes, CPM was deemed to have acquired Fuse. As a result, CPM is consolidated with Fuse effective on the Change-in-Control Date.
On August 1, 2018, (“Maxim Closing Date”) we completed the acquisition of Maxim, the (“Maxim Acquisition”) for aggregate consideration of approximately $3,400,000. As of the Maxim Closing Date, Maxim and Fuse’s operations are consolidated.
Our principal executive office is located at 1565 N. Central Expressway, Suite 220, Richardson, Texas 75080. Our Internet address is www.fusemedical.com. We are not including information contained on our website as part of, or incorporated by reference into, this Annual Report. Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports, are available to you free of charge through the Investor Relations section of our website as soon as reasonably practicable after such materials have been electronically filed with, or furnished to, the SEC.
Our business and an investment in our securities are subject to a variety of risks. The following risk factors describe some of the most significant events, facts, and circumstances that could have a material adverse effect upon our business, financial condition, results of operations, ability to implement our strategies and business plans, and the market price for our securities. Many of these events are outside of our control. If any of these events occur, our business, financial condition, or results of operations may be materially adversely affected, the trading price of our Common Stock could decline and investors in our Common Stock could lose all or part of their investments. We believe our Common Stock continues to be low volume traded and therefore, subject to significant volatility and liquidity.
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Risks Related to Our Financial Results, Credit and Certain Financial Obligations and Need for Financing
We may not be able to refinance, extend or repay our indebtedness owed to our secured lender, which would have a material adverse effect on our business, future operating results, and financial condition.
We expect to fund our future business development activities and our working capital needs largely from available cash, improved future operations, and other traditional financing sources, such as a revolving line of credit facility, term notes, or private placements, until such time sufficient funds are provided by operations. There can be no assurance that our financing efforts will be successful, or if we will be able to achieve sufficient revenue and profitability growth from operations. If an event of default occurs under our RLOC or our RLOC terminates, we could be prohibited from borrowing or unable to borrow for our working capital needs or our borrowing capacity could be further reduced. If the loans are accelerated and we do not have sufficient cash on hand to pay all amounts due, we could be required to sell assets, to refinance all or a portion of our indebtedness or to obtain additional financing. Refinancing may not be possible and additional financing may not be available on commercially reasonable terms, or at all. If we cannot borrow under the RLOC, we would need to seek additional financing, if available, or curtail our operations. Additional financing may include restrictions on our operations, or, with equity financing, may result in our stockholders’ ownership being diluted.
We may not be able to obtain waivers of potential defaults in the future from our lender and our borrowing capacity may be further reduced or restricted if we do not meet the covenants associated with our line of credit.
We executed amendments with our secured lender under the RLOC on November 19, 2018, May 9, 2019, December 18, 2019, May 21, 2020 and November 12, 2020 related to our inability to comply with certain required debt covenants. We cannot provide any assurance that our lender would provide us with a waiver should we not be in compliance in the future. A failure to maintain compliance along with our lender not agreeing to a waiver for the non-compliance would cause the outstanding borrowings to be in default and payable on demand and would adversely impact our business, future operating results, and financial condition.
Risks Related to Our Business and Industry
The COVID-19 outbreak may decrease demand for our products and disrupt our supply chain, and any decrease in demand or supply chain disruption resulting from COVID-19 would adversely affect our revenues and results of operations.
The COVID-19 global pandemic has presented and continues to present significant risks to our business plan. During our first quarter 2020 and as a response to COVID-19, the Governor of Texas declared a state of disaster and issued an executive order requiring hospitals to defer all elective surgeries. The order was effective March 19, 2020 through April 22, 2020. On April 17, 2020, the Governor of Texas issued an additional executive order permitting hospital facilities to begin elective surgeries effective April 22, 2020 with certain restrictions, including maintaining a percentage of available beds for potential COVID-19 related patients. The disaster declaration in Texas and similar declarations in other governmental jurisdictions, specifically the temporary deferral of all elective surgeries, adversely impacted our results of operations for the second quarter 2020, in particular, the periods prior to April 22, 2020. Our revenues and results of operations may also be negatively and materially affected if: (i) our supply of our products or product components or ability to distribute our products, is materially reduced despite our efforts to manage potential supply-chain disruption; (ii) an outbreak materially impacts our headquarters or manufacturing operations for a sustained period of time; (iii) hospitals are again required to allocate resources to care of patients with COVID-19 and defer treatment of procedures utilizing our products; and/or (iv) patients elect to defer treatment for procedures utilizing our products due to real or perceived concerns about the potential spread of coronavirus in hospital settings. A significant percentage of our products are utilized in elective surgeries or procedures, which may be deferred or avoided altogether due to COVID-19 outbreak. Any prolonged decrease in demand for our products or disruption to our business resulting from the COVID-19 outbreak similar to what we incurred in the second quarter of 2020 would adversely affect our revenues and results of operations.
We have significant concentration in and dependence on a small number of customers.
In 2020, our top customer represented approximately 12.6% of our consolidated net revenues. If an existing contract with one of our top customers expires without being replaced or the customer terminates the contract prior to its expiration, we could lose that customer relationship, which would adversely impact our business, future operating results, and financial condition.
We are exposed to risks of obsolete and slow-moving inventory which may adversely impact our cash flow and liquidity.
Maintaining an optimal level of inventories is important to our business. If we over-stock our inventories, our required working capital will increase. Conversely, if we under-stock our inventories, we may be unable to meet customers’ demand and consequently our results of operations may be adversely affected. For the years ended December 31, 2020 and 2019, the total amount of our inventories, net of allowance for slow-moving and obsolete inventory, were approximately $7.0 and $7.9 million, respectively, and accounted for approximately 39.9% and 42.7%, respectively, of our total assets for the same years. For the years ended December 31,
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2020 and 2019, we recorded a reserve for slow moving and obsolete inventory of $3.1 and $3.8 million, respectively. Any increase in inventory may adversely affect our working capital. If we cannot manage our inventory level efficiently in the future, our liquidity and inventory may be adversely affected. Further, if we fail to stock appropriate medical devices and instruments to suite customer demand in the future, the volume of our obsolete and slow moving inventory may increase, and we may need to either sell off such inventory at a lower price or write off such inventory, in the event of which our business, financial condition, results of operation and cash flows will be adversely affected.
To grow revenues and profitability from certain products, we must expand our relationships with hospital systems, third-party distributors and independent sales representatives, whom we do not control.
We derive significant revenues through our relationships with hospital systems, distributors and independent sales representatives. If such a relationship terminated or otherwise was negatively impacted for any reason, it could materially and adversely affect our ability to generate revenues and profits. Because independent distributors often control the customer relationships within their territory, there is a risk that if our relationship with a distributor ends, we could lose our relationship with our ultimate customer.
Our success partially depends on our ability to retain and motivate our distributors and independent sales representatives to sell our products in certain territories. However, such parties may not be successful in implementing our strategies and marketing plans. Many of our independent distributors also market and sell the products of our competitors, and those competitors may have the ability to influence the products that our independent distributors choose to market and sell. Our competitors may be able, by offering higher commission payments or otherwise, to convince our independent distributors to terminate their relationships with us, carry fewer of our products or reduce their sales and marketing efforts of our products. We also may not be able to find additional distributors and independent sales representatives who will agree to market or distribute our products on commercially reasonable terms, if at all. If we are unable to establish new distribution and independent sales representative relationships or renew current distribution and sales agreements on commercially acceptable terms, our business, financial condition and results of operations could be materially and adversely affected.
Our revenue growth and profitability will depend in large part upon the effectiveness of our marketing strategies and investments.
Our future revenue growth and profitability will partially depend on the effectiveness of our marketing efforts and maintenance of appropriate cost structure, including our ability to:
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create greater awareness of the products we sell, our quality control, and customer service; |
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identify and utilize the most effective sales representatives who are experienced with understanding the advantages of our products and who can effectively communicate that to our customers; and |
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effectively scale marketing and administrative expenditures with revenue and profitability. |
Ineffective sales representatives, promotional efforts, and management of working capital could adversely affect our future results of operations and financial condition.
Our revenues will depend on our customers’ continued receipt of adequate reimbursement from private insurers and government sponsored healthcare programs.
Political, economic, and regulatory influences continue to change the healthcare industry in the United States. The ability of hospitals and medical facilities to pay fees for our products partially depends on the extent to which reimbursement for the costs of such materials and related treatments will continue to be available from private health coverage insurers and other similar organizations. We may have difficulty gaining market acceptance for the products we sell if third-party payors do not provide adequate coverage and reimbursement to hospitals and medical facilities.
Major third-party payors of hospitals and medical facilities, such as private healthcare insurers, periodically revise their payment methodologies based, in part, upon changes in government sponsored healthcare programs. We cannot predict these periodic revisions with certainty, and such revisions may result in stricter standards for reimbursement of hospital charges for certain specified products, potentially adversely impacting our business, results of operations, and financial conditions.
If pricing pressures cause us to decrease prices for our products and we are unable to compensate for such reductions through changes in our product mix or reductions to our expenses, our results of operations will suffer.
We have experienced and may continue to experience decreasing prices for the products we offer due to pricing pressure exerted by our customers in response to increased cost containment efforts from managed care organizations, other third-party payors and increased market power of our customers as the medical device industry consolidates. If we are unable to offset such price reductions through changes in our product mix or reductions in our expenses, our business, financial condition, results of operations and cash flows will be adversely affected.
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Consolidation in the healthcare industry could lead to demands for price concessions or to the exclusion of some suppliers from certain of our markets, which could have an adverse effect on our business, financial condition or results of operations.
Because healthcare costs have risen significantly over the past decade, numerous initiatives and reforms initiated by legislators, regulators and third-party payors to curb these costs have resulted in a consolidation trend in the healthcare industry to create new companies with greater market power, including hospitals. As the healthcare industry consolidates, competition to provide products and services to industry participants has become and will continue to become more intense. This in turn has resulted and will likely continue to result in greater pricing pressures and the exclusion of certain suppliers from important market segments as GPOs, independent delivery networks and large single accounts continue to use their market power to consolidate purchasing decisions for some of our customers. We expect that market demand, government regulation, third-party reimbursement policies and societal pressures will continue to change the worldwide healthcare industry, resulting in further business consolidations and alliances among our customers, which may reduce competition, exert further downward pressure on the prices of our products and may adversely impact our business, financial condition and results of operations.
Our operating earnings are dependent on certain significant suppliers.
As of December 31, 2020, we distributed products from 58 suppliers. We are dependent on these suppliers for the continuing supply of products. In 2020, purchases of products from our largest supplier accounted for approximately 26% of purchases. We rely on suppliers to provide agreeable purchasing and delivery terms and performance incentives. Our ability to sustain adequate operating earnings has been, and will continue to be, dependent upon our ability to obtain favorable terms and incentives from suppliers, as well as suppliers’ continuing use of third-party distributors to sell and deliver their products. An unforeseen delay in raw material supplies, a change in terms by a significant supplier, or a decision of such a supplier to distribute its products directly to healthcare providers rather than through third-party distributors could have a material adverse effect on our results of operations and financial condition.
Interruption of manufacturing operations could adversely affect our business.
Our suppliers have manufacturing facilities for certain product lines that may be concentrated in one or more plants. Damage to these facilities or issues in our manufacturing arising from a failure to follow specific internal protocols and procedures, compliance concerns relating to quality systems regulations, equipment breakdown or malfunction, among other factors, could adversely affect the availability of our products. In the event of an interruption in manufacturing of certain products, we may be unable to quickly shift to alternate means of production to meet customer demand. In the event of a significant interruption, we may experience lengthy delays in resuming production of affected products due to the need for regulatory approvals. We may experience loss of market share, additional expense, or harm to our reputation.
Additionally, we contract with only one supplier for the raw materials (polymers) that we use to produce our own FDA cleared products. While we have not experienced a shortage of polymers in the past and believe that it is unlikely that there will be one in the future, if there were a shortage of polymers, it could either increase the cost of production for or prevent us from being able to produce some of our products, which could adversely affect our future results of operations and financial condition.
If we or our suppliers fail to comply with the FDA’s quality system and good tissue practice regulations, the manufacturing of our products could be delayed.
We and our suppliers are required to comply with the FDA’s QSR, which covers, among other things, the methods and documentation of the design, testing, production, control, quality assurance, labeling, packaging, sterilization, record keeping, storage and shipping of our products. In addition, suppliers and processors of products derived from HCT must comply with the FDA’s current good tissue practice requirements, or cGTPs, which govern the methods used in and the facilities and controls used for the manufacture of HCT/Ps, record keeping and the establishment of a quality program. The FDA audits compliance with the QSR and cGTPs through inspections of manufacturing and other facilities. If we or our suppliers have significant non-compliance issues or if any corrective action plan is not sufficient, we or our suppliers could be forced to halt the manufacturing of our products until such problems are corrected to the FDA’s satisfaction, which could have a material adverse effect on our business, financial condition and results of operations. Further, our products could be subject to recall if the FDA determines, for any reason, that our products are not safe or effective. Any recall or FDA requirement demanding that we seek additional approvals or clearances could result in delays, costs associated with modification of a product, loss of revenue and potential operating restrictions imposed by the FDA, all of which could have a material adverse effect on our business, financial condition and results of operations.
Future business combinations or acquisitions may be difficult to integrate, which could cause us to shift our attention away from our primary business and its operations.
We may pursue future business combinations with other companies or strategic acquisitions of complementary businesses, product lines, or technologies. There can be no assurance that such acquisitions will be available at all, or on terms acceptable to us. These transactions may require additional capital, which may increase our indebtedness or outstanding shares, resulting in a dilution to our
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stockholders or a reduction in working capital. The inability to obtain such future capital may inhibit our growth and operating results. Integration of acquisitions or additional products can be costly, time-consuming, and complicated which could significantly impact operating results. Furthermore, the integration of any acquisition may disproportionally divert our executive team’s time and resources from our primary business and its operations. We may sell some or all of our product lines to other companies or we may agree to merge with another company. There can be no assurance that future transactions will ultimately benefit our Company. If we face difficulty integrating future acquisitions or if our executive team’s attention is diverted, our future results of operations may negatively impact our business, results of operations, and financial condition.
If the statutes and regulations in our industry change, our business could be adversely affected.
The U.S. healthcare industry has undergone significant changes designed to improve patient safety, improve clinical outcomes, and increase access to medical care. These changes include enactments and repeals of various healthcare related laws and regulation. Our operations and economic viability may be adversely affected by the changes in such regulations, including: (i) federal and state fraud and abuse laws; (ii) federal and state anti-kickback statutes; (iii) federal and state false claims laws; (iv) federal and state self-referral laws; (v) state restrictions on fee splitting; (vi) laws regarding the privacy and confidentiality of patient information; and (vii) other laws and government regulations.
If there are changes in laws, regulations, or administrative or judicial interpretations, we may have to change our business practices, or our existing business practices could be challenged as unlawful, which could have a material adverse effect on our business, financial condition, and results of operations.
U.S. federal and state governmental regulation could restrict our ability to sell the products.
Our business is subject to highly complex and evolving regulatory and licensing requirements that are subject to uncertainty, rapid change, differing interpretations, and rigorous regulatory enforcement. Failure to comply with such regulatory requirements may result in civil or criminal penalties, including the loss of licenses or the exclusion from future participation in government healthcare programs. There can be no assurance that federal or state regulatory or enforcement authorities will not investigate or challenge our current or future activities under these laws. Any state or federal regulatory or enforcement review of us, regardless of the outcome, would be costly and time consuming. Additionally, we cannot predict the impact of any changes in these laws, whether these changes are retroactive or will affect us on a going-forward basis only. Any investigation or challenge could have a material adverse effect on our reputation, business, financial condition, and results of operations.
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The FDA regulates the manufacturers and suppliers of the products that we sell, market, manufacture, and distribute, and regulatory compliance is costly and could contribute to delays in the availability of our products.
Under FDA regulations, we are subject to the same FDA regulation as the manufacturers and suppliers to whom we distribute. These regulations govern (i) the manufacturing and processing of cellular and tissue products; (ii) the introduction of new medical devices; (iii) the observance of certain standards with respect to the design, manufacturing, testing, labeling, promotion, and sales of the devices; (iv) the maintenance of certain records; (v) the ability to track devices; (vi) the reporting of potential product defects; (vii) the importing and exporting of devices; and (viii) various other matters. Furthermore, manufacturers that create the products we market face an increasing amount of scrutiny and compliance costs as more states implement regulations governing medical devices and Biologics. In addition, we are subject to ongoing compliance concerning our products with 510(k) Clearance, as well as potential onsite inspections by the FDA. Being found in violation and failing to correct an FDA compliance issue, could potentially result in product recall, product seizure, or the withdrawal of the 510(k) Clearance. These types of FDA regulations could affect many of the products we market, impacting our revenues and profitability, results of operations, and working capital.
Future regulatory action remains uncertain.
We operate in a highly-regulated and evolving environment with rigorous regulatory enforcement. Any legal or regulatory action could be time-consuming and costly. If we or the manufacturers or distributors that supply or distribute our products fail to comply with all applicable laws, standards, and regulations, action by the FDA or other regulatory agencies could result in significant restrictions, including restrictions on the marketing or use of the products we sell or the withdrawal of the products we sell from the market. Any such restrictions or withdrawals could materially affect our reputation, business and operations.
If we fail to obtain, or experience significant delays in obtaining, FDA clearances or approvals for our future products or modifications to our products, our ability to commercially distribute and market our products could suffer.
Our medical devices are subject to extensive regulation by the FDA and numerous other federal and state governmental authorities. The process of obtaining regulatory clearances or approvals to market a medical device, particularly from the FDA, can be costly and time consuming, and there can be no assurance that such clearances or approvals will be granted on a timely basis, if at all. In particular, the FDA permits commercial distribution of most new medical devices only after the devices have received clearance under Section 510(k) of the FDCA, or 510(k), or are the subject of an approved premarket approval application, or a PMA. The 510(k) process generally takes three to nine months, but can take significantly longer, especially if the FDA requires a clinical trial to support the 510(k) application. Currently, we do not know whether the FDA will require clinical data in support of any 510(k)s that we intend to submit for other products in our pipeline. In addition, the FDA continues to re-examine its 510(k) Clearance process for medical devices and published several draft guidance documents that could change that process. Any changes that make the process more restrictive could increase the time it takes for us to obtain clearances or could make the 510(k) process unavailable for certain of our products. A PMA must be submitted to the FDA if the device cannot be cleared through the 510(k) process or is not exempt from premarket review by the FDA. A PMA must be supported by extensive data, including results of preclinical studies and clinical trials, manufacturing and control data and proposed labeling, to demonstrate to the FDA’s satisfaction the safety and effectiveness of the device for its intended use. The PMA process is more costly and uncertain than the 510(k) Clearance process, and generally takes between one and three years, if not longer. In addition, any modification to a 510(k)-cleared device that could significantly affect its safety or effectiveness, or that would constitute a major change in its intended use, design or manufacture, requires a new 510(k) Clearance or, possibly, a PMA.
Intellectual property litigation and infringement claims could cause us to incur significant expenses or prevent us from selling certain of our products.
The medical device industry is characterized by extensive intellectual property litigation and, from time to time, we may become the subject of claims of infringement or misappropriation. Regardless of outcome, such claims are expensive to defend and divert management and operating personnel from other business issues. A successful claim or claims of patent or other intellectual property infringement against us could result in payment of significant monetary damages and/or royalty payments or negatively impact our ability to sell current or future products in the affected category.
We operate our business in regions subject to natural disasters and other catastrophic events, and any disruption to our business resulting from natural disasters would adversely affect our revenue and results of operations.
We operate our business in regions subject to severe weather and natural disasters including tornadoes, hurricanes, floods, fires, earthquakes, and other catastrophic events. Any natural disaster could adversely affect our ability to conduct business and provide products and services to our customers, and the insurance we maintain may not be adequate to cover our losses resulting from any business interruption resulting from a natural disaster or other catastrophic event.
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We cannot be certain that our internal controls over financial reporting and procedures will be sufficient in the future. This uncertainty could have a material adverse effect on our investors’ confidence in our reported financial information. There is no guarantee that our internal controls over financial reporting and procedures will not fail in the future.
Effective internal controls over financial reporting and disclosure controls and procedures are necessary to provide reliable financial reports and to detect and prevent fraud. Our significant assessment and remediation measures we have taken may not be sufficient to maintain investors’ confidence, and a damage to our reputation may result in an adverse impact to our financial position and results of operations. Our disclosure controls and internal controls over financial reporting may not prevent all errors or all instances of fraud. A control system, no matter how well designed and operated, can provide only reasonable, as opposed to absolute, assurances that the objectives of the control system will be met. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within our business have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple errors or mistakes. Individual acts can also circumvent these controls through collusion of two or more people or through our executive’s override of the controls. The design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and any design may not succeed in achieving its stated goals under all potential conditions. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures. Because of the inherent limitation of a cost-effective control system, misstatements due to error or fraud may have occurred and may not have been detected. A failure in any of our internal controls and procedures may result in (i) enforcement actions by the SEC or other governmental or regulatory bodies; (ii) litigation; (iii) loss of reputation; (iv) loss of investor confidence; (v) inability to acquire capital; or (vi) other material adverse effects on our Company.
A cyber security incident could cause a violation of HIPAA, breach of customer and patient privacy, or other negative impacts.
We rely extensively on our information technology (“IT”) systems to manage scheduling and financial data, communicate with customers and their patients, vendors, and other third parties and summarize and analyze operating results. In addition, we have made significant investments in technology, including the engagement of a third-party IT provider. A cyber-attack that bypasses our IT security systems could cause an IT security breach, a loss of protected health information, or other data subject to privacy laws, a loss of proprietary business information, or a material disruption of our IT business systems. This in turn could have a material adverse impact on our business and result of operations. In addition, our future results of operations, as well as our reputation, could be adversely impacted by theft, destruction, loss, or misappropriation of public health information, other confidential data or proprietary business information.
Computer malware, viruses, and hacking and phishing attacks by third parties have become more prevalent in our industry, have occurred on our systems in the past, and may occur on our systems in the future. Because techniques used to obtain unauthorized access to or sabotage systems change frequently and generally are not recognized until successfully launched against a target, we may be unable to anticipate these techniques or to implement adequate preventative measures. As cyber-security threats develop and grow, it may be necessary to make significant further investments to protect data and infrastructure. If an actual or perceived breach of our security occurs, (i) we could suffer severe reputational damage adversely affecting customer or investor confidence, (ii) the market perception of the effectiveness of our security measures could be harmed, (iii) we could lose potential sales and existing customers, our ability to deliver our products or operate our business may be impaired, (iv) we may be subject to litigation or regulatory investigations or orders, and (v) we may incur significant liabilities. Our insurance coverage may not be adequate to cover the potentially significant losses that may result from security breaches. Additionally, while we currently do not have cybersecurity coverage, we plan to evaluate options for this type of coverage in 2021.
We depend on the knowledge and skills of our executives and other key employees, and if we are unable to retain and motivate them or recruit additional qualified personnel, our business may suffer.
We benefit substantially from the leadership and performance of our executives and certain key employees. For example, key members of our executive team have experience with successfully scaling an early stage medical device company to achieve profitability. Our success will depend on our ability to retain our current executives and key employees, and to attract and retain qualified personnel in the future. Competition for executives and key employees in our industry is intense and we cannot guarantee that we will be able to retain our personnel nor attract new, qualified personnel. This uncertainty may be especially true during periods in which we face challenges such as financial difficulties or a reduced stock price. The loss of the services of certain members of our executives or key employees could prevent or delay the implementation and completion of our strategic objectives or divert management’s attention to seeking qualified replacements. Each member of the executive team and our key employees may terminate employment without notice and without cause or good reason. The members of our executive team are not subject to non-competition or employment agreements. Accordingly, the adverse effect resulting from the loss of certain members of the executive team could be compounded by our inability to prevent them from competing with us.
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We may be adversely affected by product liability claims, unfavorable court decisions or legal settlements.
We are exposed to potential product liability risks inherent in the design, manufacturing, and marketing of medical devices, many of which are implanted in the human body for long periods of time or indefinitely. These matters are subject to many uncertainties and outcomes are not predictable. In addition, we may incur significant legal expenses regardless of whether we are found to be liable.
While we maintain product liability insurance, there can be no assurance that such coverage is sufficient to cover all product liabilities that we may incur. We are not currently subject to any product liability proceedings, and we have no reserves for product liability disbursements. However, we may incur material liabilities relating to product liability claims in the future, including product liability claims arising out of the usage and delivery of our products. Should we incur product-related liabilities exceeding our insurance coverage, we would be required to use available cash or raise additional cash to cover such liabilities.
Uncertainty in future changes to tax legislation, regulatory reform, or policies could have a material adverse effect on our business.
Tax laws, regulations, and policies in various jurisdictions may be subject to significant change due to economic, political and other conditions. The recently enacted U.S. tax reform legislation referred to as the Tax Cuts and Jobs Act of 2017 (“U.S. Tax Reform Law”), significantly changes how the U.S. taxes corporations, and many of those changes went into effect for the first time for the 2018 tax year. The U.S. Treasury Department, the Internal Revenue Service (“IRS”), and other standard-setting bodies could interpret or issue guidance on how provisions of the U.S. Tax Reform Law will be applied or otherwise administered that is different from our interpretation. As we complete our analysis of the U.S. Tax Reform Law, collect and prepare necessary data, and interpret any additional guidance, we may adjust the provisional amounts that we have recorded, which may materially impact our provision for income taxes in the period in which the adjustments are made. In addition, state or local jurisdictions may enact tax laws in response to the U.S. Tax Reform Law that could result in further changes to taxation and materially affect our financial position and results of operations.
We do business with companies that are owned or controlled by our Chief Executive Officer and Chairman of the Board and President, which could create actual or potential conflicts of interest.
Members of our executive team, including Messrs. Reeg and Brooks, have economic interests in other companies with which we do business. These relationships could create, or appear to create, potential conflicts of interest. Such a conflict of interest could potentially cause a member of our executive team to seek to advance his economic interests above ours. Moreover, transactions with related parties may not be on terms as favorable to us as they would have been if they had been negotiated among unrelated parties.
While we have policies and procedures in place to prevent conflicts of interest resulting in a transaction that is unfavorable to our Company, there can be no assurance that our policies and procedures will prevent us from entering into a transaction that is not in our best interests or the best interests of our stockholders. If we do enter into an agreement with a related party with terms less favorable to us than we could have negotiated with an unrelated party, it could have a material adverse effect on our results of operations and financial condition.
Some members of our executive team may dedicate inadequate time and attention to our Company.
Our Chief Executive Officer and Chairman of the Board and President, may become distracted by other matters, reducing the amount of time they allocate to the affairs of our Company. For example, Mr. Reeg and Mr. Brooks both own other companies, and they may allocate more of their time to the operations of those companies. If members of our executive team devote more substantial amounts of their time to those matters in the future, their ability to devote sufficient time to our operations may be limited and could negatively impact our business.
General economic conditions may adversely affect demand for our products and services.
Poor or deteriorating economic conditions in the U.S. could adversely affect the demand for healthcare services and consequently, the demand for our products. Poor economic conditions also could lead our suppliers to offer less favorable terms of purchase, which would negatively affect our cash flows and profitability. These and other possible consequences of financial and economic decline could have material adverse effect on our business, results of operations, and financial condition.
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Risks Related to Ownership of Our Common Stock
We are subject to significant corporate regulation as a public company and failure to comply with all applicable regulations could subject us to liability or negatively affect our stock price.
As a publicly-traded company, we are subject to a significant body of regulation, including the Sarbanes-Oxley Act of 2002. While we have developed and instituted a corporate compliance program based on what we believe are the current best practices in corporate governance and continue to update this program in response to newly implemented or changing regulatory requirements, we cannot provide assurance that we are or will be in compliance with all potentially applicable corporate regulations.
For example, we cannot provide assurance that, in the future, our executive team will not find a material weakness in connection with its periodic review of our internal controls and processes over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act. We also cannot provide assurance that we could correct any such weakness to allow our executive team to assess the effectiveness of our internal controls over financial reporting as of the end of our fiscal year with enough time to state that such assessment will have been fairly stated in our Annual Report, or state that we have maintained effective internal controls over financial reporting as of the end of our fiscal year. If we fail to comply with any of these regulations, we could be subject to a range of regulatory actions, fines or other sanctions or litigation. If we disclose any material weakness in our internal controls over financial reporting, our stock price could decline and erode investors’ confidence.
Because the market for our Common Stock is limited, persons who purchase our Common Stock may not be able to resell their shares at or above the purchase price they paid.
Our Common Stock trades on the Over-the-Counter markets (“OTC Markets”), which are not highly liquid securities markets, and is designated as OTC Pink, Current Information Tier. With some limited exceptions, there has not been an active public market for our Common Stock. We cannot provide an assurance that an active public market for our Common Stock will develop or be sustained in the future. If an active market for our Common Stock does not develop or is not sustained, the price may decline, and our stockholders may lose their investment in our Common Stock.
Historically, the market price for our Common Stock has been highly volatile and trades at low volumes. From time to time, the market has experienced significant price and volume fluctuations, which we believe are unrelated to our operating performance. Fluctuations in the trading price or liquidity of our Common Stock may reduce the value of an investment in our Common Stock.
Factors that may have a significant impact on the market price and marketability of our Common Stock include:
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changes in national healthcare policies and practices; |
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third-party reimbursement policies; |
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adverse legislation, including changes in governmental regulation and investigations; |
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litigation and government proceedings; |
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uncertainty related to future legislation, regulatory reforms, or policy changes, including the impact of the U.S. Tax Reform Law; |
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announcements of technological innovations or new commercial products by our collaborative partners, our present competitors, or potential competitors; |
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developments in our relationships with employees, suppliers, or collaborative partners; |
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developments or disputes concerning IP or other proprietary rights; |
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successes or failures of acquisitions or divestitures; |
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our quarterly operating results; |
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short selling; |
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changes in securities analysts’ recommendations; |
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economic and other external factors; and |
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general market conditions. |
In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has frequently been instituted. These lawsuits often seek unspecified damages, and as with any litigation proceeding, we cannot predict with certainty the eventual outcome of pending litigation. Furthermore, we may have to incur substantial expenses related to any securities class
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action lawsuits and our executive team’s attention and resources could shift away from operating our business to responding to any such litigation. We maintain certain levels of insurance to cover these types of risks for our Company, our directors, and our officers. Our insurance coverage and policies are subject to high deductibles to reduce premium expenses, and there is no guarantee that our insurance will cover any specific claim that we currently face or may face in the future, or that our insurance will be adequate to cover all potential liabilities and damages or that we will have sufficient working capital or funds.
Our current executive team can exert significant influence over our Company and make decisions that are not in the best interests of all stockholders.
As a group, our executives and directors beneficially own approximately 92.8% of our outstanding shares of Common Stock. Because of this ownership, these stockholders can assert significant influence over all matters requiring stockholder approval, including the election and removal of directors and any change-in-control. Such concentration of ownership of our outstanding Common Stock could delay or prevent a change-in-control, or otherwise discourage or prevent a potential acquirer from attempting to obtain control of our Company, possibly negatively affecting the market price of our Common Stock. This significant ownership could also prevent our stockholders from realizing a premium over the market prices for their shares of Common Stock. Moreover, the interests of executives and directors may not always coincide with the interests of our Company or the interests of other stockholders causing us to enter into transactions or agreements that we would not otherwise consider.
Under our charter documents and Delaware law, we could issue “blank check” preferred stock without stockholder approval, which would dilute our then current stockholders’ interests and impair such stockholders’ voting rights, discouraging a takeover that our stockholders may consider favorable.
Our certificate of incorporation provides that we may authorize and issue up to 20,000,000 shares of “blank check” preferred stock with designations, rights, and preferences as may be determined from time to time by our Board. Our Board is empowered, without stockholder approval, to issue one or more series of preferred stock with dividend, liquidation, conversion, voting, or other rights, which could dilute the interest of or impair the voting power of our holders of Common Stock. The issuance of a series of preferred stock could be used as a method of discouraging, delaying, or preventing a change in control. For example, it would be possible for our Board to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of our Company.
If our Common Stock becomes subject to a “chill” or a “freeze” imposed by the Depository Trust Company (“DTC”) our stockholders’ ability to sell shares may be limited.
The DTC acts as a depository or nominee for street name shares or stock that investors deposit with their brokers. Although through DTC our Common Stock is eligible for electronic settlement, historically DTC has imposed a chill or freeze on the deposit, withdrawal, and transfer of common stock of issuers whose common stock trades on the OTC Markets. Depending on the type of restriction, it can prevent our stockholders from buying or selling our shares of Common Stock and prevent us from raising money. A chill or freeze may remain imposed on a security for a few days or an extended period. While we have no reason to believe a chill or freeze will be imposed against our Common Stock, if DTC did so, our stockholders’ ability to sell their shares would be limited.
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ITEM 1B. UNRESOLVED STAFF COMMENTS.
None.
Our principal executive office is approximately 11,500 square feet and is located at 1565 North Central Expressway, Suite 220, Richardson, Texas, 75080. We lease our executive office space pursuant to two separate leases with 1565 North Central Expressway, LP (“NCE, LP”). The lease between CPM, a wholly-owned subsidiary, and NCE, LP (“CPM Lease”) was effective January 1, 2013, and the second lease between Fuse and NCE, LP (“Fuse Lease”) was effective July 14, 2017. Both the CPM Lease and Fuse Lease terminated December 31, 2017, with month-to-month renewals. We believe our present business property is adequate and suitable to support our mid-term strategies and initiatives for growth. We have currently decided to continue on a month-to-month lease with the option of renegotiating a long-term lease renewal or relocation in the future.
Our leased property does not have material costs of complying with environmental laws.
None.
ITEM 4. MINE SAFETY DISCLOSURES.
Not applicable.
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ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES.
Our Common Stock trades and is quoted on the OTC Markets designated as OTC Pink, Current Information Tier, under the trading symbol OTCPINK: FZMD. There is no established public trading market for our Common Stock, as the trading market for our Common Stock has been extremely limited and sporadic.
Below is a table indicating the range of high and low bid information for our Common Stock as reported by the OTC Markets interdealer quotation system for the periods listed. Bid prices represent interdealer prices and do not include retail mark-ups, retail mark-downs, or any commission to a broker-dealer. In addition, these prices may not necessarily reflect actual transactions.
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Fiscal 2020 |
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First Quarter |
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$ |
0.60 |
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$ |
0.32 |
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Second Quarter |
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0.55 |
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0.00 |
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Third Quarter |
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0.10 |
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0.05 |
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Fourth Quarter |
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0.12 |
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0.06 |
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Fiscal 2019 |
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First Quarter |
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$ |
0.68 |
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$ |
0.41 |
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Second Quarter |
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0.56 |
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0.20 |
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Third Quarter |
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0.55 |
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0.23 |
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Fourth Quarter |
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0.35 |
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0.10 |
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Holders of Record
As of March 8, 2021, there were 357 account holders of record of our Common Stock listed with our transfer agent, American Stock Transfer and Trust Company, LLC.
Dividends
We have not paid or declared any dividends on our Common Stock during the past two (2) fiscal years and we do not intend to pay any dividends on our Common Stock for the foreseeable future.
ITEM 6. SELECTED FINANCIAL INFORMATION.
As a smaller reporting company, as defined in Rule 12b-2 of the Exchange Act, we are not required to provide the information required by this item.
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
The following discussion highlights our results of operations and the principal factors that have affected our consolidated financial condition, our liquidity and our capital resources for the periods described. The discussion also provides information that our management believes is relevant for an assessment and understanding of our consolidated financial condition and results of operations presented herein. The following discussion and analysis are based on our Financial Statements contained in this Annual Report, which have been prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”). The discussion and analysis should be read in conjunction with our Financial Statements and the related notes therein.
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Explanatory Note
As described in “Item 1. Business, Corporate and Available Information,” and elsewhere in this Annual Report, our Financial Statements include the accounts of our Company and our wholly-owned subsidiaries, CPM, and Maxim. Intercompany transactions have been eliminated in consolidation.
Overview
We are a Manufacturer, distributor, and wholesaler of medical devices offering a broad portfolio of Orthopedic Implants, Biologics, and other medical devices. A more detailed description of our business operation can be found in “Item 1. Business” within this Annual Report.
We believe 2020 proved pivotal for our growth as a Manufacturer and innovative product developer. Our focus to shift our business model from a sole distributor to an integrated Manufacturer and distributor has seen successful results in 2020, with continued growth and success leading into 2021. Highlights of our 2020 strategic milestones include the following:
Severe Weather Conditions
During February 2021, the state of Texas experienced record-breaking winter weather which resulted in dangerous road conditions, widespread power outages, water outages and contamination of the water supply, causing significant disruptions through-out Texas, including our corporate office and distribution center for several days.
Our executive management team immediately focused on the health and wellbeing of our employees, while also working to minimize the impact on our customers. We resumed full operations on March 1, 2021 and are currently working to address the Cases, sales support, and administrative functions backlog. Generally, surgical cases canceled due to the severe weather have been rescheduled to subsequent weeks . (See Item 1A. “Risk Factors- Risks Related to Our Business and Industry”, for additional information).
Impact of COVID-19 to Fuse
The novel coronavirus SARS CoV-2 (“COVID-19”) global pandemic has presented and continues to present significant risks to our business plan. During our first quarter 2020 and as a response to COVID-19, the Governor of Texas declared a state of disaster and issued an executive order requiring hospitals to defer all elective surgeries. The order was effective March 19, 2020 through April 22, 2020.
On April 17, 2020, the Governor of Texas issued an additional executive order permitting hospital facilities to resume elective surgeries effective April 22, 2020 with certain restrictions, including maintaining a percentage of available beds for potential COVID-19 related patients. The disaster declaration in Texas and similar declarations in other governmental jurisdictions, specifically the temporary deferral of all elective surgeries, adversely impacted our results of operations for the second quarter 2020, in particular, the periods prior to April 22, 2020.
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A second executive order suspending elective surgeries and procedures was issued on June 30, 2020. It was amended on July 9, 2020 to encompass all counties within the 11 Trauma Service Areas in Texas. This executive order was lifted on September 17, 2020 and elective surgeries and procedures in these areas were resumed.
During the second quarter of 2020, we implemented strategic cost reductions in order to mitigate the impact of COVID-19 on our business. Included in these initiatives were company-wide salary reductions of all our employees, including our executive officers. As of December 31, 2020, a majority of the reduced salaries have been reinstated.
Despite the adverse effects of COVID-19 on our business in the second quarter of 2020, our net income for the year ended December 31, 2020 increased over the year December 31, 2019. However, our revenue declined for the year ended December 31, 2020 compared to 2019. We believe that our revenues for the third and fourth quarters of 2020 were strengthened due to performance of deferred second quarter elective surgeries in the third and fourth quarters of 2020. However, the strength of those two quarters did not entirely compensate for the second quarter deterioration due to COVID-19. Our products support patient conditions which are degenerative in nature. While most of our products are used in procedures that are currently considered elective, the procedures are typically necessary for a patient to restore mobility, reduce pain and increase quality of life. Other cases are emergency in nature involving trauma.
Current Trends and Outlook
Seasonality
We are subject to seasonal fluctuations in sales, which cause fluctuations in quarterly results of operations. Because of the seasonality of our business, results for any quarter are not necessarily indicative of results that may be achieved in other quarters or for a full fiscal year.
Historically, we have experienced greater revenue and greater sales volume, as a percentage of revenue, during the last two calendar quarters of our fiscal year compared to the first two calendar quarters of the year. We believe this revenue trend is primarily due to the increase in elective surgeries during the last two quarters of the calendar year, which are partially satisfied by patient annual healthcare deductibles being met in those two quarters. We use this seasonality trend to assist us in enterprise-wide resource planning, such as purchasing, product inventory logistics, and human capital demands.
Subsequent to the government-imposed shelter-in-place mandates and prohibitions on elective surgeries in response to COVID-19, revenues for the third quarter of 2020 were higher than our historical seasonality trends due to surgeries deferred in the second quarter of 2020 due to elective surgery restrictions being performed in the third and fourth quarters.
For the years ended December 31, 2020 and 2019, approximately $12.8 million (60%) and $13.1 million (57%) of revenues were generated during the third and fourth quarters of 2020 and 2019, respectively. We use this seasonality trend to assist us in enterprise-wide resource planning such as purchasing, product inventory logistics, and human capital management.
Retail and Wholesale Cases
We believe our comprehensive selection of Orthopedic Implants and Biologics products is pivotal to our ability to acquire new customers, increase sales to existing customers and increase overall sales volume, revenues, and profitability. We continue to review and evaluate our product lines, ensuring we maintain a high-quality and cost-effective selection of Orthopedic Implants and Biologics.
We measure sales volume based on medical procedures in which our products were sold and used (each a Case). We consider Cases resulting from direct sales to hospitals and medical facilities to be Retail Cases and Cases resulting from sales to third-parties, such as distributors, or sub-distributors, to be Wholesale Cases. Some of our sales for Wholesale Cases are on a consignment basis with the third-party. (See “Item 1. Business” for additional information).
Retail Cases in our industry command higher revenue price points than Wholesale Cases. Because Retail Cases involve direct sales to our end customers, we typically receive a higher gross profit margin due to the absence of any third party in the sales process. However, we may pay commissions to our full time or independent sales representatives with respect to Retail Sales increasing our commission expenses. Retail Cases generally generate substantially more gross profit than Wholesale Case transactions but are subject to commission expenses which we do not incur with respect to Wholesale Cases.
25
Wholesale Cases in our industry command lower revenue price-points than Retail Cases as the third-party reseller must build in its own profit margin. Because Wholesale Cases involve sales to third parties who sell our products to end customers, our profit margins are reduced for these Cases due to the lower sales price. Consequently, our Wholesale Cases generate substantially lower gross profit than our Retail Cases. Our Wholesale Case business is highly dependent on minimum volume sales levels to generate revenues in excess of our fixed costs of revenues in order to achieve appropriate profitability.
Pricing Pressures
Pricing pressure has increased in our industry due to (i) continuous consolidation among healthcare providers, (ii) trends toward managed care healthcare, (iii) increased government oversight of healthcare costs, and (iv) new laws and regulations that address healthcare reimbursement and pricing. Pricing pressure, reductions in reimbursement levels or coverage, or other cost containment measures can significantly impact our business, future operating results and financial condition.
To offset pricing pressure, we employ strategies to optimize revenue per Case. During 2020, we believe we were successful in minimizing the impact of pricing pressures as reflected with average revenue per Case of $5,583 for 2020 and $4,228 for 2019. During 2020, our strategy to emphasize our Retail Model proved successful as Retail Cases represented approximately 89% of revenue, or an approximate 6% increase over 2019.
Compensation Initiatives
We expect to continue to offer compensation and other valuable long-term incentives, such as equity incentives, to key distributors, executives, and employees as a means to expand our strategic partnerships and industry relationships. During 2020, our Board granted equity incentives to our Scientific Advisory Board members (SABs), key distributors, independent contractors and employees. (See “Item 1. Business” for additional information).
26
Results of Operations
Year Ended December 31, 2020 Compared to Year Ended December 31, 2019
The following table sets forth certain financial information from our consolidated statements of operations along with a percentage of net revenue and should be read in conjunction with the Financial Statements and related notes included in this report.
|
|
For the Year Ended December 31, 2020 |
|
% of Total Revenues 2020 |
|
For the Year Ended December 31, 2019 |
|
% of Total Revenues 2019 |
|
||||
|
Net revenues |
$ |
21,398,936 |
|
100.0% |
|
$ |
22,900,277 |
|
100.0% |
|
||
|
Cost of revenues |
|
8,694,713 |
|
41% |
|
|
11,762,790 |
|
51% |
|
||
|
Gross profit |
|
12,704,223 |
|
59% |
|
|
11,137,487 |
|
49% |
|
||
|
Operating expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general, administrative, and other |
|
6,541,659 |
|
31% |
|
|
8,466,077 |
|
37% |
|
||
|
Commissions |
|
7,086,335 |
|
33% |
|
|
5,982,075 |
|
26% |
|
||
|
Depreciation and amortization |
|
104,143 |
|
0% |
|
|
107,073 |
|
1% |
|
||
|
Goodwill impairment |
|
- |
|
0% |
|
|
932,203 |
|
4% |
|
||
|
Total operating expenses |
|
13,732,137 |
|
64% |
|
|
15,487,428 |
|
68% |
|
||
|
Operating loss |
|
(1,027,914 |
) |
-5% |
|
|
(4,349,941 |
) |
-19% |
|
||
|
Other income (expense): |
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in fair value of contingent purchase consideration |
|
(290,635 |
) |
-2% |
|
|
1,936,164 |
|
9% |
|
||
|
Interest expense |
|
(94,953 |
) |
0% |
|
|
(121,633 |
) |
-1% |
|
||
|
Total other income (expense) |
|
(385,588 |
) |
-2% |
|
|
1,814,531 |
|
8% |
|
||
|
Operating loss before income tax |
|
(1,413,502 |
) |
-7% |
|
|
(2,535,410 |
) |
-11% |
|
||
|
Income tax expense |
|
18,993 |
|
0% |
|
|
781,085 |
|
4% |
|
||
|
Net loss |
$ |
(1,432,495 |
) |
-7% |
|
$ |
(3,316,495 |
) |
-14% |
|
||
Net Revenues
For the year ended December 31, 2020, our net revenues were $21,398,936 compared to $22,900,277 for the year ended December 31, 2019, a decrease of $1,501,341, or approximately 6.6%.
For the year ended December 31, 2020, Retail Case volume decreased approximately 14% compared to the year ended December 31, 2019, and revenues from Retail Cases decreased by approximately 0.01% compared to revenues from Retail Cases for the year ended December 31, 2019. Revenues from Retail Cases as a percentage of total revenues increased to 89% of revenues for the year ended December 31, 2020, from 83% of revenues for the year ended December 31, 2019. We believe the increase in revenue from Retail Cases as a percent of total revenues reflects the execution of our strategies to shift more of our business to higher margin Retail Cases through improvement of our supply chain management. Therefore, wholesale revenue as a percent of total revenue has decreased.
As discussed above in “Current Trends and Outlook”, we believe that as our industry faces increased pricing pressures, we will need to focus on increased volume of Retail Cases to maintain gross profit levels. We intend to increase our Retail Case volume by increasing sales volumes with our existing retail customer base as well as on-boarding new medical facilities, surgeons, and distributors.
Cost of Revenues
For the year ended December 31, 2020, our cost of revenues was $8,694,713 compared to $11,762,790 for the year ended December 31, 2019, which is a decrease of $3,068,077, or approximately 26%
As a percentage of revenues, cost of revenues was approximately 41% for the year ended December 31, 2020 compared to 51% for the year ended December 31, 2019. As a percentage of revenues, this reduction was primarily driven by (a)(i) an approximate 7% reduction in cost of revenues primarily driven by a reduction in Case volume product mix, (a)(ii) an approximate 6% decline in the inventory loss provision for slow-moving and obsolescence and inventory shrink; offset in part by, (b)(i) an approximate 2% increase in medical instruments purchased, and (b)(ii) approximately 1% in net shipping expense, other supply chains related costs.
27
Gross Profit
For the year ended December 31, 2020, our gross profit was $12,704,223 compared to $11,137,487 for the year ended December 31, 2019, representing an increase of $1,566,736, or approximately 14%.
As a percentage of revenues, gross profit increased 10% from approximately 49% to approximately 59% for the years ended December 31, 2020 and 2019. As a percentage of revenues, the increase primarily resulted from those items discussed in Cost of Revenues.
Selling, General, Administrative and Other
For the year ended December 31, 2020, our selling, general, administrative, and other expenses (SG&A) were $6,541,659 compared to SG&A of $8,466,077 for the year ended December 31, 2019, representing a decrease of $1,924,418 or 23%.
As a percentage of net revenues, SG&A accounted for approximately 31% for the year ended December 31, 2020, and 37% for the year ended December 31, 2019. As a percentage of revenues, the reduction of approximately 6% was primarily driven by: (a)(i) a $817,039 decline in leased staffing costs, (a)(ii) a $474,845 reduction in bad debt expense, (a)(iii) a $465,586 decline in professional fees, (a)(iv) a $100,350 reduction in travel and entertainment, and (a)(v) a $74,494 reduction in stock based compensation; offset, in part by, (b)(i) a $7,896 increase in other administrative expenses and other.
The reductions in leased staffing cost of $817,039, the decrease of $465,586 in professional fees, the decrease of $354,166 in SAB costs, and the $100,350 reduction in travel and entertainment costs reflects our commitment to our strategic cost containment initiatives.
Commissions
For the year ended December 31, 2020, our commissions expense increased to $7,086,335 from $5,982,075 for the year ended December 31, 2019, an increase of $1,104,260, or approximately 18.5%.
As a percentage of net revenues, commissions expense accounted for approximately 33% for the year ended December 31, 2020, and 26% for the year ended December 31, 2019. This increase is primarily driven by an approximate three percent (3%) increase in revenues eligible for commissions and an approximately four percent (4%) increase in average commission rates for the year ended December 31, 2020 compared to the year ended December 31, 2019.
Depreciation and Amortization
For the year ended December 31, 2020, our depreciation and amortization expense decreased to $104,143 from $107,073 for the year ended December 31, 2019, a decrease of $2,930. The decrease is primarily the result of an approximate (a)(i) $12,882 reduction in amortization of intangible assets which were fully amortized, such as noncompete agreements and customer relationships, acquired pursuant to the Maxim Acquisition (see Note 4 of our accompanying consolidated Financial Statements, entitled “Goodwill and Intangible Assets”), offset, in part, by (b)(i) an approximate $9,952 increase in depreciation expense as a result of investment in IT infrastructure such as additional and replacement user workstations.
Goodwill Impairment
During 2020, we assessed the recoverability of the carrying value of our goodwill as a result of (i) the continuation of adverse economic and business trends, and (ii) revisions to our anticipated future operating results. There was no impairment of goodwill as of December 31, 2020. For further information on goodwill impairment, please see Note 2 of our accompanying Financial Statements, entitled “Significant Accounting Policies, Goodwill and Other Intangible Assets.”
Change in Fair Value of Contingent Purchase Consideration
For the year ended December 31, 2020, we determined that the earnings thresholds, as detailed in the CPM Acquisition Agreement, were not met for payments under the earn-out (“Earn-Out”). Therefore, based on our 2020 financial performance, we will make no payments to NC 143 for either the base Earn-Out or the bonus Earn-Out for 2020.
As of December 31, 2020, the fair value of the Earn-Out liability was re-measured to fair value under the probability weighted income approach, as further explained in Note 2 of our accompanying consolidated Financial Statements, entitled “Significant Accounting Policies, Fair Value Measurements.” As a result, the current fair value of the Earn-Out liability was increased by $290,635, from $11,645,365 to $11,936,000. For more information on the change in the fair value of contingent purchase consideration, please see Note 2 on our accompanying Financial Statements, entitled “Significant Accounting Policies, Fair Value Measurements.”
28
Interest
For the year ended December 31, 2020, our interest expense declined to $94,953 from $121,633 for the year ended December 31, 2019, which is a reduction of $26,680, or approximately 22%. This decline in interest expense is primarily attributable to (a)(i) an approximate $21,748 reduction in interest rates on our RLOC, (a)(ii) an approximate $11,850 reduction due to lower average borrowings on our RLOC, offset, in part, by (b)(i) $407 increase in interest expense related to the notes payable – related party notes, (b)(ii) $2,720 increase in interest expense related to the Paycheck Protection Program Loan (“PPP Loan”), and (b)(iii) $3,791 increase in interest related to the Economic Injury Disaster Loan (“EIDL Loan”).
Tax
For the year ended December 31, 2020, we recognized a tax expense of $18,993, compared to $781,085 for the year ended December 31, 2019. The tax expense recognized in 2019 is a result of recognition of a valuation allowance for deferred tax assets based on management’s determination that it is more likely than not that all or a portion of the deferred tax asset will not be realized. For additional information, please see Note 11 of our accompanying consolidated Financial Statements, entitled “Income Taxes.”
Net Loss
For the year ended December 31, 2020, we had a net loss of $1,432,495, compared to net loss of $3,316,495 for the year ended December 31, 2019, reflecting a reduction in our net loss of $1,884,000, or approximately 57%. The primary drivers for our reduction in net loss for the year ended December 31, 2020 were (a)(i) a $1,566,736 increase in gross profit, (a)(ii) $1,924,418 reduction in selling, general, administrative, and other, (a)(iii) $932,203 reduction in goodwill impairment, (a)(iv) $762,092 reduction in income tax, (a)(v) $26,680 reduction in interest expense, and (a)(vi) $2,930 reduction in depreciation and amortization, offset, in part, by (b)(i) $2,226,799 increase in change in fair value of contingent purchase consideration, and (b)(ii) $1,104,260 increase in commissions.
Liquidity and Capital Resources
Cash Flows
A summary of our cash flows is as follows:
|
|
|
Year Ended December 31, |
|
|||||
|
|
|
2020 |
|
|
2019 |
|
||
|
Net cash provided by/(used in) operating activities |
|
$ |
236,654 |
|
|
$ |
(4,739 |
) |
|
Net cash used in investing activities |
|
|
(20,757 |
) |
|
|
(15,318 |
) |
|
Net cash (used in)/provided by financing activities |
|
|
(127,749 |
) |
|
|
275,053 |
|
|
Net increase in cash and cash equivalents |
|
$ |
88,148 |
|
|
$ |
254,996 |
|
Net Cash Provided by/(Used In) Operating Activities
Our net cash provided by operating activities was $236,654 for year ended December 31, 2020 compared to net cash used in operating activities of $4,739 for the year ended December 31, 2019. The increase of $241,393 primarily resulted from: (a)(i) a $1,884,000 reduction in net loss, (a)(ii) a $827,623 reduction in account receivable, a $476,333 reduction in inventories, (a)(iii) a $443,803 increase in accounts payable, (a)(iv) a $25,944 reduction in prepaid expenses and other current assets; offset, in part, by (b)(i) a $1,248,200 reduction in accrued expenses, (b)(ii) a $1,187,436 increase in long term accounts receivable, and (b)(iii) $980,674 in non-cash adjustments.
Net Cash Used In Investing Activities
Our net cash used in investing activities for the year ended December 31, 2020 was $20,757 compared to $15,318 for the year ended December 31, 2019. This increase of $5,439 was primarily driven by investment in information technology related to new and replacement user workstations.
Net Cash Provided by (Used in) Financing Activities
Our net cash used in financing activities was $127,749 for the year ended December 31, 2020, compared to net cash provided by financing activities of $275,053 for the year ended December 31, 2019. This decrease of $402,802 is primarily driven by (a)(i)
29
$1,114,202 reduction in net borrowings from our RLOC; offset in part, by (b)(i) $361,400 proceeds from the PPP, (b)(ii) $200,000 proceeds from notes payable – related parties, and (b)(iii) $150,000 in proceeds from EIDL Loan.
Liquidity
Our primary sources of liquidity are cash from our operations and our RLOC with Amegy Bank. At December 31, 2020, our current assets exceeded our current liabilities by $5,372,651 (our “Working Capital”), which included $1,187,458 in cash and cash equivalents. Cash from our operations and net borrowings on our RLOC supports our Working Capital needs.
On December 29, 2017, we became party to a RLOC with Amegy Bank. The RLOC established an asset-based senior secured revolving credit facility in the amount of $5,000,000. The RLOC contains customary representation, warranties, covenants, events of default, and is collateralized by substantially all of our assets and provides that our Chairman of the Board and President personally guarantee a portion of the outstanding RLOC amount.
On September 21, 2018, we executed the First Amendment to the RLOC with Amegy Bank (the “First Amendment”). The First Amendment (i) waived our events of default under the RLOC through the fiscal quarter ended September 30, 2018, and (ii) added a covenant that we achieve quarterly net income of $700,000 or more for the fiscal quarter ending on September 30, 2018.
On November 19, 2018, we executed the Second Amendment to the RLOC with Amegy Bank (“Second Amendment”). The Second Amendment (i) waived our events of default under the RLOC, (ii) reduced the aggregate limit of the RLOC to $4,000,000, (iii) extended the maturity date to November 4, 2019, (iv) revised the variable interest rate to the one-month LIBOR rate plus four percent (4.00%) per annum, and (v) amended the financial covenants to state that we will not permit: the Fixed Charge Coverage Ratio of any calendar quarter end from and after the quarter ending June 30, 2019, to be less than 1.25 to 1.00; earnings before interest, taxes, depreciation and amortization (“EBITDA”) to be less than $700,000 for the fiscal quarter ending December 31, 2018, and $100,000 for the fiscal quarter ending March 31, 2019; modified the event of default related to consecutive quarterly losses to be applicable from and after the quarter ending June 30, 2019.
On May 9, 2019, we executed the Third Amendment to the RLOC with Amegy Bank (the “Third Amendment”). Pursuant to the Third Amendment, Amegy Bank (i) waived our events of default under the RLOC, (ii) reduced the aggregate limit of the RLOC to $3,500,000, (iii) reduced the limit of credit card exposure to $500,000, (iv) reduced the borrowing base component of Inventory to 30%, (v) amended the financial covenants to state that we will not permit EBITDA to be less than $100,000 for the fiscal quarter ending June 30, 2019 and $500,000 for the fiscal quarter ending September 30, 2019 and (vi) rescinded the loan sweep feature, requiring us to give notice of each requested loan by delivery of advance request to Amegy Bank.
On December 18, 2019, we executed the Fourth Amendment to the RLOC with Amegy Bank (the “Fourth Amendment”). Pursuant to the Fourth Amendment, Amegy Bank (i) waived our events of default under the RLOC, (ii) reduced the aggregate limit of the RLOC to $2,750,000, (iii) reduced and limited the annual salary of our Chairman of the Board and President, Mr. Brooks, to not exceed $550,000, (iv) amended the financial covenants to state that we will not permit EBITDA to be less than $600,000 for the fiscal quarter ending December 31, 2019 and $125,000 for the fiscal quarter ending March 31, 2020, (v) extended the termination date of the RLOC to May 4, 2020, and (vi) provides for our Chairman of the Board and President to personally guarantee one-hundred percent (100%) of the outstanding RLOC amount.
On May 21, 2020, we executed the Fifth Amendment to our RLOC with Amegy Bank (the “Fifth Amendment”). Pursuant to the Fifth Amendment, Amegy Bank (i) waived our events of default under the RLOC, (ii) amended the financial covenants to state that we will not permit EBITDA to be less than $25,000 for the fiscal quarters ending June 30, 2020 and September 30, 2020, and (iii) extended the termination date of our RLOC until November 4, 2020.
In conjunction with obtaining the Fifth Amendment, we obtained an additional $200,000 in capital in the form of subordinated debt from affiliates of Messrs. Brooks and Reeg. Specifically, on May 6, 2020, we borrowed $180,000 from NC 143, a limited partnership controlled by Mr. Brooks, and $20,000 from RMI, a company owned and controlled by Mr. Reeg, in exchange for two promissory notes which are unsecured and bear interest at 0.25% per annum until May 6, 2022, the maturity date, and 10.0% per annum after the maturity date. Principal and interest are due and payable on the maturity date, provided, however, any payment of principal and interest on the loans is subordinated to payment of all indebtedness under the RLOC.
On November 12, 2020 we executed a Sixth Amendment to the RLOC with Amegy Bank (“Sixth Amendment”), which extended the termination date of our RLOC to May 4, 2021. The Company was in compliance with all RLOC covenants as of December 31, 2020. (See Note 5, “Senior Secured Revolving Credit Facility” of our accompanying consolidated notes to our Financial Statements, beginning on page F-1).
We rely on the RLOC for capital expenditures and day-to-day Working Capital needs. As of March 8, 2021, we had approximately $1,375,335 in available cash, and $698,047 available on our RLOC for borrowing (subject to certain borrowing base limitations). Borrowings on our RLOC are repaid from cash generated from our operations.
30
Payroll Protection Program
On April 11, 2020, we received approval from the U.S. Small Business Administration (“SBA”) to fund our request for a PPP Loan created as part of the recently enacted Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) administered by the SBA. In connection with the PPP Loan, we entered into a promissory note in the principal amount of $361,400. In accordance with the requirements of the CARES Act, we used the proceeds from the PPP Loan primarily for payroll costs. The Company has filed for forgiveness of the entire balance. The PPP Loan is reflected in short term liabilities in our accompanying consolidated balance sheets on F-1 as we expect the PPP Loan will be forgiven during 2021. (See Note 7, “Payroll Protection Program” of our accompanying consolidated notes to our Financial Statements, beginning on page F-1).
Economic Injury Disaster Loan
On May 12, 2020, we executed the standard loan documents required for securing an EIDL Loan from the SBA in light of the impact of the COVID-19 pandemic on our business. Pursuant to that certain Loan Authorization and Agreement (the “SBA Loan Agreement”), the principal amount of the EIDL Loan was $150,000, with proceeds to be used for working capital purposes. In connection therewith, we received a $10,000 advance, which does not have to be repaid and is reflected as an offset in Selling, General, Administrative and Other Expenses in our accompanying consolidated statements of operations. (See Note 8, “Economic Injury Disaster Loan” of our accompanying consolidated notes to our Financial Statements, beginning on page F-1).
Our strategic growth plan provides for capital investment for new product launches, private label branding, and the upgrade of our financial systems which support our infrastructure. We deem these investments essential to support our growth and expansion objectives. We estimate the range of this type of investment to be approximately $2 million to $3 million and anticipate these investments to occur primarily during the calendar year 2022. We expect sources of capital for these investments to be derived from cash from operations and additional debt financing.
Off-Balance Sheet Arrangement
As of December 31, 2020, we had no off-balance sheet arrangements.
Impact of Inflation
We do not believe the effect of inflation, as measured by fluctuations in the U.S. Consumer Price Index, has had a material impact on our Financial Statements for the year ended December 31, 2020.
Critical Accounting Policies and Estimates
The preparation of our Financial Statements and the related disclosures in conformity with GAAP, requires our management to make judgments, assumptions, and estimates that affect the amounts of revenue, expenses, income, assets, and liabilities, reported in our Financial Statements and accompanying notes. Understanding our accounting policies and the extent to which our management uses judgment, assumptions, and estimates in applying these policies is integral to understanding our Financial Statements.
We describe our most significant accounting policies in “Note 2, Significant Accounting Policies” of our consolidated notes to our Financial Statements and found elsewhere in this Annual Report. These policies are considered critical because they may result in fluctuations in our reported results from period to period due to the significant judgments, estimates, and assumptions about highly complex and inherently uncertain matters. In addition, the use of different judgments, assumptions, or estimates could have a material impact on our financial condition or results of operations. We evaluate our critical accounting estimates and judgments required by our policies on an ongoing basis and update them as appropriate based on changing conditions.
There have been no material changes to our critical accounting policies during the period covered by this report.
Recent Accounting Pronouncements
We describe recent accounting pronouncements in Note 2, “Significant Accounting Policies” of our consolidated notes to our Financial Statements.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
As a smaller reporting company, as defined in Rule 12b-2 of the Exchange Act, we are not required to provide the information required by this item.
31
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The Report of our independent registered public accounting firm, our consolidated Financial Statements, the accompanying notes to our Financial Statements, that are filed as part of this Annual Report are listed under “Item 15. Exhibits and Financial Statements Schedules” and are set forth in our Financial Statements, immediately following the signature pages of this Annual Report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.
None.
ITEM 9A. CONTROLS AND PROCEDURES.
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports filed under the Exchange Act, is recorded, processed, summarized, and reported within the time periods specified in the SEC’s rules and forms. Our disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that this information is accumulated and communicated to management, including the principal executive and principal financial officers, or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure.
Under the supervision and with the participation of our Board, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation (pursuant to Rule 13a-15(b) promulgated under the Exchange Act) of the design and operation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) and 15d-15(e) promulgated under the Exchange Act, as of December 31, 2020. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that as of December 31, 2020, our disclosure controls and procedures were effective.
Management’s Annual Report on Internal Control over Financial Reporting
Our Chief Executive Officer and Chief Financial Officer are responsible for establishing and maintaining adequate internal control over financial reporting, (as defined in Rule 13a-15(f) promulgated under the Exchange Act). Our internal control over financial reporting is a process designed to ensure the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.
Under the supervision and with the participation of our Board, including our Chief Executive Officer and our Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2020. In making this assessment, our Chief Executive Officer and Chief Financial Officer used the criteria that have been set forth by COSO in Internal Control – Integrated Framework (2013). Based on evaluation by our Chief Executive Officer and Chief Financial Officer and under the COSO criteria, our Chief Executive Officer and Chief Financial Officer concluded that our internal control over financial reporting as of December 31, 2020 is effective.
Changes in Internal Control over Financial Reporting
No change in our internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act) occurred during the year ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
None.
32
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.
Executive Officers and Directors
The names and ages of our directors and executive officers are set forth below. All directors are elected annually by the stockholders to serve until the next annual meeting of the stockholders and until their successors are duly elected and qualified. The officers are appointed by our Board. There is no agreement or understanding between us and any director or executive officer pursuant to which they were selected as an officer or director.
|
Name |
|
Age |
|
Position |
|
Christopher C. Reeg |
|
57 |
|
Chief Executive Officer, Secretary and Director |
|
Mark W. Brooks |
|
55 |
|
Chairman of the Board, President and Director |
|
Renato V. Bosita, Jr., MD |
|
49 |
|
Independent Director |
|
William E. McLaughlin III |
|
57 |
|
Chief Financial Officer, Treasurer and Director |
Christopher C. Reeg
Mr. Reeg has served as our Chief Executive Officer and a member of our Board since December 19, 2016. Effective January 18, 2018, our Board appointed Mr. Reeg to the additional role of Secretary. Mr. Reeg has also served as the Chief Executive Officer of CPM since 2017 and Maxim since 2018. Mr. Reeg founded Maxim in 2011 and served as its President until we acquired Maxim in August 2018. Mr. Reeg led the design, development, and successful commercialization of a spinal implant that received the approval of the FDA in 2013 and is currently manufactured and distributed by Fuse. Prior to forming Maxim, Mr. Reeg founded LMI Ortho, a distributor of spine and Orthopedic Implants purchased from domestic and international manufacturers and suppliers. While at LMI Ortho, Mr. Reeg acquired importation rights for a total joint orthopedic portfolio. Working with surgeons in the United States, Mr. Reeg expanded implant product lines and developed effective growth strategies based on design and market intelligence. Before entering the orthopedic industry with LMI Ortho in 1996, Mr. Reeg formed Spectramed, Inc., a multi-state home respiratory company where he served as its President until the sale of Spectramed, Inc., to a national healthcare company in 2001. Having founded two medical implant manufacturing and distributing companies and served as an executive officer in those companies, Mr. Reeg brings significant experience and knowledge regarding how to successfully navigate the medical device industry.
Mark W. Brooks
Mr. Brooks has served as our director and Chairman of the Board since December 19, 2016. Effective January 18, 2018, our Board appointed Mr. Brooks to the additional role as President of the Company. Prior to the acquisition by our Company of all of the outstanding membership interest of CPM, Mr. Brooks served as the Chief Executive Officer of CPM, a privately-owned national distributor of medical devices and regenerative tissue. Prior to forming CPM in 2002, Mr. Brooks partnered with Mr. Reeg during the formation and growth of Home Health Equipment, Inc. (“Home Health”), a durable medical equipment provider contracting with acute home health agencies and hospitals in several states. In 1996, Messrs. Brooks and Reeg sold Home Health to predecessor companies of Tenet Healthcare Corporation. Having successfully served as Chief Executive Officer of a national distributor of medical devices, Mr. Brooks brings considerable expertise in the strategic management and growth of medical device distribution to our Board.
Renato V. Bosita, Jr., MD
Dr. Bosita has served as an independent member of our Board since his appointment on August 1, 2017. Dr. Bosita is a spine fellowship-trained orthopedic surgeon based in Plano, Texas. He attended Stanford University where he received a degree in biological sciences in 1992. He then attended the University of Chicago Pritzker School of Medicine and completed his residency in orthopedic surgery at Loyola University Medical Center. While a resident at Loyola University Medical Center in 2001, Dr. Bosita earned a Master of Business Administration degree from the Northwestern University J. L. Kellogg Graduate School of Management. Dr. Bosita completed his spine fellowship at University Hospitals of Cleveland in 2002. Dr. Bosita currently practices as a spine surgeon at Texas Back Institute, headquartered in Plano, Texas. Additionally, Dr. Bosita is the Chairman of the Board of Managers for Texas Health Presbyterian Hospital of Rockwall and he is also member of its finance committee. Dr. Bosita was appointed to the Board for his experience in the healthcare industry and business acumen.
William E. McLaughlin, III
Mr. McLaughlin has served as a member of our Board since December 19, 2016, as Interim Chief Financial Officer from March 31, 2017 until January 18, 2018, when our Board appointed Mr. McLaughlin, to his current position of Chief Financial Officer and Treasurer. Mr. McLaughlin is a certified public accountant licensed in the State of Texas and has over 26 years of experience in accounting and financial reporting for private and large public companies traded on the New York Stock Exchange (“NYSE”) and NASDAQ Stock Market (“NASDAQ”) in addition to his work for “big-four” public accounting firms. Mr. McLaughlin has also
33
served as Chief Financial Officer of CPM since 2014 and Maxim since 2018. Mr. McLaughlin joined CPM as Vice President Finance, Controller in 2013. From 2006 until he joined CPM, Mr. McLaughlin served as Vice President Finance, Controller for Caris Life Sciences, Inc., a $180 million international, anatomic pathology, and molecular biotechnology laboratories and multi-state physician practices enterprise. Having over 26 years of experience in accounting and financial reporting for private and public companies, Mr. McLaughlin brings considerable financial expertise to our Board.
Family Relationships
There are no family relationships among our existing or incoming directors or officers.
Involvement in Certain Legal Proceedings
None of our executive officers or directors is a party in a legal proceeding adverse to us or any of our subsidiaries or has a material interest adverse to us or any of our subsidiaries. No executive officer or director has been involved in the last ten (10) years in any of the following:
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• |
any bankruptcy petition filed by or against any business or property of such person, or of which such person was a general partner or executive officer either at the time of the bankruptcy or within two (2) years prior to that time; |
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• |
any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); |
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• |
being subject to any order, judgment, decree, not subsequently reversed, suspended, or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending, or otherwise limiting his involvement in any type of business, securities, or banking activities; |
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• |
being found by a court of competent jurisdiction (in a civil action), the SEC, or the Commodity Future Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated; |
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• |
being the subject of or a party to any judicial or administrative order, judgment decree or finding, not subsequently reversed, suspended, or vacated relating to an alleged violation of any federal or state securities or commodities law or regulation, or any law or regulation respecting financial institutions or insurance companies, including but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order, or any law or regulation prohibiting mail, fraud, wire fraud, or fraud in connection with any business entity; or |
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• |
being the subject of or a party to any sanction or order, not subsequently reversed, suspended, or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member. |
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our officers and directors, and persons who own more than ten percent (10%) of a registered class of our equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of Common Stock and other equity securities. Officers, directors, and greater than ten percent stockholders are required by SEC rules to furnish us with copies of all Section 16(a) reports that they file.
We believe that, during 2020, our directors, executive officers, and ten percent (10%) stockholders complied with all Section 16(a) filing requirements.
34
Corporate Governance
Board Committees
We do not believe that with the current size of our Company, it is necessary for us to have a separately-designated standing audit committee, therefore our entire Board serves as the audit committee. William E. McLaughlin III serves as our “audit committee financial expert,” as such term is defined under the rules promulgated under the Exchange Act. Mr. McLaughlin meets the requirements of serving as our “audit committee financial expert” from his extensive background in accounting and financial reporting for both private and large public companies. For more information on Mr. McLaughlin, please see “Item 10. Executive Officers and Directors” in this Annual Report.
We are not required to have and currently do not have a compensation committee. Due to the low volume of compensation matters that come before our Board, our entire Board has sufficient time to review such matters, so we do not believe it is necessary for our Board to appoint a separate compensation committee at this time.
Our entire Board participates in matters related to executive officer and director compensation. Our Board will consider the recommendations of our Chief Executive Officer when determining compensation for our other executive officers. Our Chief Executive Officer has no role in determining his own compensation. We have not paid fees to or engaged any compensation consultants.
We are also not required to have and do not have a nominating committee. Given the limited scope of our operations, our Board believes appointing a nominating committee would be premature and of little assistance until our business operations are at a more advanced level.
We have not made any material changes to the procedures to which the security holders may recommend Board candidates to our Company during the year ended December 31, 2020.
Board Leadership Structure Oversight
Our Board does not have a policy as to whether the roles of Chairman of the Board and Chief Executive Officer should be separate or combined. Currently, our Chairman of the Board is Mark W. Brooks, who is also our President, and our Chief Executive Officer is Christopher C. Reeg. Our Board has determined that this current structure, with separate roles for our Chairman of the Board and our Chief Executive Officer is in our best interests and our stockholders’ best interests at this time. Several factors support the leadership structure chosen by our Board, including, among others:
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• |
Our Board believes this governance structure promotes balance between our Board’s independent authority to oversee our business and our Chief Executive Officer and his management team, who manage the business on a day-to-day basis. |
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• |
The current separation of our Chairman of the Board and our Chief Executive Officer roles allows our Chief Executive Officer to focus his time and energy on operating and managing our Company and to leverage the experience and perspectives of our Chairman of the Board. |
Board Assessment of Risk
Our Board’s primary function is one of oversight. Our Board has responsibility for risk oversight and reviews management’s risk assessment and risk management policies and procedures. Our Board considers and reviews, with our independent registered public accounting firm and our executive management team, the adequacy of our internal controls, including the processes for identifying significant risks and exposures, and our Board elicits recommendations for the improvements of such procedures where desirable. Members of our executive management team have the day-to-day responsibility for risk management and establishing risk management practices, and they are expected to report matters directly to our Board. The executive management team has an open line of communication to our Board and has the discretion to raise issues from time-to-time in any manner they deem appropriate. Members of our executive team regularly attend our Board meetings, and often discuss risks related to our business.
Code of Ethics
Our Board has adopted a code of ethics (the “Code of Ethics”) that applies to all our employees, including our Chief Executive Officer and Chief Financial Officer. The Code of Ethics provides written standards that we believe are reasonably designed to (i) deter wrongdoing; (ii) promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; (iii) encourage full, fair, accurate, timely, and understandable disclosure and compliance with laws, rules, and regulations, including insider trading, corporate opportunities, and whistle-blowing; and (iv) facilitate the prompt
35
reporting of illegal or unethical behavior. We will provide a copy of the Code of Ethics to any person without charge, upon request. The request for a copy can be made in writing to Fuse Medical, Inc., 1565 North Central Expressway, Suite 220, Richardson TX, 75080, Attention: Corporate Secretary.
Stockholder Communications
Although we do not have a formal policy regarding communications with our Board, our stockholders may communicate with our Board by writing to us at Fuse Medical, Inc., 1565 North Central Expressway, Suite 220, Richardson, TX 75080, Attention: Investor Relations, or, by facsimile (469) 862-3035, or by email IR@fusemedical.com. Stockholders who would like their submission directed to a specific member of our Board may so specify, and the communication will be forwarded, as appropriate.
ITEM 11. EXECUTIVE COMPENSATION.
Executive Compensation Discussion and Analysis
The following discussion and analysis of our compensation arrangements with our named executive officers (“Named Executive Officers”) should be read together with the compensation tables and related disclosures set forth elsewhere in this Annual Report. Our Named Executive Officers for the year ended December 31, 2020, were:
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• |
Christopher C. Reeg, Chief Executive Officer |
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• |
William E. McLaughlin, III, Chief Financial Officer |
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• |
Mark W. Brooks, President |
This discussion contains forward-looking statements that are based on our current plans and expectations regarding future compensation programs.
In place of having a separate compensation committee, which is not required based on the size of our Company, our Board is charged with the responsibility for establishing, implementing, and monitoring adherence to our compensation philosophy and ensuring that our executives and key management personnel are effectively compensated. Our Board is also responsible for reviewing the compensation of directors.
Executive Compensation Philosophy and Objectives
Our Board’s overall philosophy in terms of executive compensation is to attract, retain, and motivate highly-qualified individuals to achieve our business goals and link their professional performance with stockholder interests. Our compensation plans are designed to motivate and reward our employees for achievement of positive business results and to promote and enforce accountability. We also compensate our executives through our equity incentive plan, which reflects the long-term performance of our Common Stock.
Setting Executive Compensation
Our Board is responsible for establishing and periodically reviewing the compensation of our executive officers and approving all equity awards, including those to our executive officers. Our Board also reviews the performance of our executive officers and determines whether salary adjustments are necessary or recommended.
Elements of Compensation
The total compensation program for our executive officers consists of the following elements:
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• |
Base salary; |
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• |
Cash incentive and bonus awards tied to the executive’s and our annual or quarterly performance; |
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• |
Long-term incentive compensation, in the form equity awards; and |
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• |
Medical benefits, as provided to all eligible employees. |
36
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|
Our Board seeks to structure each element of compensation to attract and retain the necessary executive talent, reward annual performance, and provide incentives for both long-term strategic goals and short-term performance. Our Board’s strategy for allocating between currently-paid and long-term compensation is to ensure adequate base compensation that attracts and retains personnel, while providing incentives to maximize long-term value for our stockholders.
Our Company has no formal policy for allocating compensation among the compensation elements described above.
Base Salary
We pay each of our Named Executive Officers a base salary in cash on a bi-weekly basis. This base salary is designed to compensate our executives for performance of their respective responsibilities, and it is the only component of their compensation that is fixed rather than variable. Our competitive base salary is intended to attract and retain highly qualified individuals as our executive officers.
The base salary for our Named Executive Officers for the year ending December 31, 2020, was:
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Christopher C. Reeg: |
$264,231(1) |
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|
William E. McLaughlin: |
$176,153(1) |
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|
Mark W. Brooks: |
$540,865(1) |
At the beginning of 2020, our Board determined that $300,000 was an appropriate base salary for Mr. Reeg due to the amount of responsibility and oversight that the Chief Executive Officer position requires. However, because of salary reductions described below, Mr. Reeg earned $264,231 for the year ended December 31, 2020.
At the beginning of 2020, Board believed that $200,000 base salary for Mr. McLaughlin was appropriate because Mr. McLaughlin serves as our Chief Financial Officer, a position that is primarily responsible for the financial well-being of our Company. Additionally, the Board seeks to provide Mr. McLaughlin with a competitive salary for his extensive financial and accounting background. However, because of salary reductions described below, Mr. McLaughlin earned $176,153 for the year ended December 31, 2020.
Mr. Brooks was appointed to the executive position of President by our Board on January 18, 2018, following the CPM Acquisition. Mr. Brooks has the highest base salary of our Named Executive Officers, in part because of his extensive experience and knowledge of the medical device industry and the business relationships that Mr. Brooks brings to our Company. Also, the base salary for Mr. Brooks was partially determined by the earnings he received when he was the sole owner of CPM, which our Board believes correlates with Mr. Brooks position as President of our Company. Pursuant to the Fourth Amendment to our RLOC with Amegy Bank, filed on our December 2019 Form 8-K, Mr. Brooks annual base salary was reduced to $550,000 effective December 18, 2019. However, because of the salary reductions described below, Mr. Brooks earned $540,865 for the year ended December 31, 2020.
(1) During 2020, the base salary for each Named Executive Officer was reduced as part of our strategic cost reductions that we put in place in response to minimizing the impact of COVID-19 on our Company. As of December 31, 2020, the NEOs still have not had their pre-reduction base salary fully reinstated. Our Board will continue to evaluate the Named Executive Officers salaries going forward into 2021.
Cash Incentive and Bonus Awards
Our Board has the discretion to reward executives with cash incentive and bonus awards. We may pay cash incentive awards if we meet or exceed performance goals as determined by our Board for that year, and we generally give bonus awards to reward executives for short-term performance goals. We are not required to give our executives these awards, and only do so upon the recommendation and approval of our Board.
Executive Long-Term Incentive Compensation
Our Board has the authority to provide compensation to our executives based on the value of and changes in the value of our Common Stock. We grant equity compensation to reward our executives for positive business results and to retain our executives long-term for their services to our Company. Under our Amended and Restated 2018 Equity Incentive Plan, (“2018 Equity Plan”) which was adopted in 2017 and subsequently amended by our Board in December 2018, we authorize our Board to grant stock options, restricted stock, restricted stock units, stock appreciation rights, and other stock awards to our management and employees.
37
Medical Benefits
Medical benefits are a component of our Company’s compensation plan that is offered to attract and retain highly-qualified individuals. Our Named Executive Officers are offered medical benefits that are generally made available to all employees of our Company at similar cost.
2020 Summary Compensation Table
The following information is related to the compensation paid, distributed, or accrued by our Company for 2020 and 2019, to our Named Executive Officers, including our Chief Executive Officer (“Principal Executive Officer”) and the other most highly compensated executive officers serving at the end of the last fiscal year whose compensation exceeded $100,000.
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Non-Equity |
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Non- Qualified |
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||
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Incentive Plan |
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Deferred Compen- |
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All Other |
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Name and |
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Stock |
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Option |
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Compen- |
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sation |
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Compen- |
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Principal Position |
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Year |
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Salary |
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Bonus |
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Awards |
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Awards |
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sation |
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Earnings |
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sation |
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Total |
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(a) |
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(b) |
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($)(c)(6) |
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($)(d) |
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($)(e) |
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($)(f) |
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($)(g) |
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($)(h) |
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($)(i)(4) |
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($)(j) |
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Christopher C. Reeg (1) |
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2020 |
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$ |
264,231 |
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- |
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|
$ |
- |
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- |
|
|
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- |
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|
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- |
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|
$ |
235,110 |
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|
$ |
499,341 |
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Chief Executive Officer |
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2019 |
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300,000 |
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- |
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- |
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- |
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- |
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- |
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2,085 |
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302,085 |
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William E. McLaughlin III (2) |
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2020 |
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176,153 |
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- |
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- |
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|
- |
|
|
|
- |
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|
- |
|
|
|
- |
|
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|
176,153 |
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Chief Financial Officer |
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2019 |
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|
200,000 |
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- |
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- |
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- |
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|
- |
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- |
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|
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- |
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200,000 |
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Mark W. Brooks (3)(5) |
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2020 |
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540,865 |
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- |
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- |
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|
|
- |
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- |
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|
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- |
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1,331,797 |
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1,872,662 |
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President |
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2019 |
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682,692 |
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- |
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- |
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- |
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- |
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- |
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632,195 |
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1,314,887 |
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(1) |
Appointed December 19, 2016, as our Chief Executive Officer. On January 18, 2019, our Board appointed Mr. Reeg as our Secretary. |
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(2) |
Appointed April 6, 2017, as our Interim Chief Financial Officer. On January 18, 2019, our Board appointed Mr. McLaughlin as our Chief Financial Officer and Treasurer. |
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(3) |
On January 18, 2019, our Board appointed Mr. Brooks as our President. Mr. Brooks has served as the Chairman of our Board since December 19, 2016. |
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(4) |
All other compensation consists of commissions we paid to entities owned and controlled by the Named Executive Officer (“NEO”). The amounts presented were calculated as the percent ownership by the NEO times the commissions paid to the entity. |
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(5) |
Pursuant to the Fourth Amendment to our RLOC with Amegy Bank, filed on our December 2019 Form 8-K, Mr. Brooks annual salary was reduced to $550,000 effective December 18, 2019. |
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(6) |
The 2020 salary for each NEO was less than their agreed upon base salary due to the temporary company-wide salary reductions which were part of our strategic cost reductions in response to minimizing the impact of COVID-19 on our Company. |
Provisions of Termination or Change-in-Control
In the event of a change-in-control, NC 143 would receive Earn-Out payments pursuant to the CPM Acquisition Agreement and all equity awards pursuant to the 2018 Equity Plan would fully vest.
Other Executive Compensation Arrangements
None.
38
Outstanding Awards at Fiscal Year End
The following information is descriptive of options of shares of Common Stock that have not vested but we granted to our Named Executive Officers as of December 31, 2020.
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Option Awards |
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Stock Awards |
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Name and Principal Position (a) |
Number of securities underlying unexercised options (#) exercisable (b) |
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Number of securities underlying unexercised options (#) unexercisable (c) |
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Equity incentive plan awards: number of securities underlying unexercised unearned options (#) (d) |
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Option exercise price ($) (e) |
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Option expiration date (f) |
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Number of shares or units of stock that have not vested (#) (g) (1) |
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Market value of shares or units of stock that have not vested (#) (h) |
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Equity incentive plan awards: number of unearned shares, units or other rights that have not vested (#) (i) |
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Equity incentive plan awards: market or payout value of unearned shares, units or other rights that have not vested ($) (j) |
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Christopher C. Reeg Chief Executive Officer |
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- |
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- |
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- |
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- |
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- |
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475,723 |
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|
$ |
150,000 |
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- |
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- |
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William E. McLaughlin, III Chief Financial Officer |
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- |
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- |
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- |
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- |
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- |
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|
475,723 |
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|
$ |
150,000 |
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|
- |
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- |
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Mark W. Brooks President |
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- |
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- |
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- |
|
|
|
- |
|
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- |
|
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|
475,723 |
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|
$ |
150,000 |
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- |
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- |
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(1) |
Each of our Named Executive Officers received three (3) restricted stock awards (“RSAs”): (i) 65,000 shares of Common Stock, granted September 21, 2017; (ii) 188,500 shares of Common Stock, granted December 14, 2017; and (iii) 222,223 shares of Common Stock, granted on December 10, 2018, which were modified on August 7, 2019, pursuant to the 2018 Equity Plan. These shares of Common Stock subject to the RSA shall vest upon: (i) the occurrence of one of the following events (each, an “Accelerating Event”): (A) the listing of our Common Stock on either the NYSE or the NASDAQ Stock Market; or (B) a Change in Control (as defined in the RSA Agreement); and (ii) the delivery by the RSA recipient to our Company of a Notice of Acceleration of Vesting (as defined in the RSA Agreement) no later than sixty (60) days following the earlier of (A) the date our Company sends written notice of such Accelerating Event or (B) the date the RSA recipient actually or constructively becomes aware that such Accelerating Event has occurred (such 60-day period, the “Acceleration Notice Period”). |
Director Compensation Discussion and Analysis
The following discussion and analysis of our compensation arrangements with our directors should be read together with the compensation tables and related disclosures set forth elsewhere in this Annual Report. Please note that this disclosure excludes our other three (3) directors who also serve as Named Executive Officers of our Company. Please refer to the above to “Item 11. Executive Compensation - 2020 Summary Compensation Table” and the related narrative disclosure for information about the compensation those individuals received in their capacities as directors.
39
Our independent director (“Independent Director”) for the year ended December 31, 2020 was:
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• |
Renato V. Bosita Jr., MD. |
Director Compensation Philosophy and Objectives
Our Board receives comparative market data and recommendations regarding the structure of our Independent Director compensation and the amounts paid through either cash-incentives or equity awards to our non-management directors. For year ending December 31, 2020, we did not pay our Independent Directors a retainer in the form of cash compensation. Due to the size of our Company and our status as a smaller reporting company, as defined in Rule 12b-2 of the Exchange Act, our Board determined that there is currently no need to pay a retainer fee to active Board members. However, we do pay all of our directors for their services as members of the Board in the form of stock awards. Additionally, directors who participate on a special committee of the Board may receive a one-time cash payment, at the discretion of our Board.
Director Long-Term Equity Incentive Compensation
Our Board has the authority to provide compensation to our Independent Directors on the value of and changes in the value of our Common Stock through our equity incentive plans. Please see “Item 11. Executive Compensation - Executive Long-Term Equity Incentive Compensation” for more information on our 2018 Equity Plan.
Special Committee Compensation
Upon the formation of a special committee of our Board to address a specific issue, our Board determines the amount of compensation that should be paid to the members of that special committee, based upon the amount of time and effort we expect those individuals to dedicate to that special committee.
2020 Director Compensation
For the year ended December 31, 2020, our Board did not grant any payment in form of stock awards or cash payments to our directors. Additionally, there were no independent special committees in which participating directors received additional compensation during the fiscal year 2020.
Risk Assessment Regarding Compensation Policies and Practices
We believe that our compensation program neither incentivizes our employees to take excessive risks nor creates risks that are reasonably likely to have a material adverse effect on our Company. Our compensation policy has the following risk-limiting objectives:
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• |
To decrease the incentive to take unnecessary or imprudent risks, our base salaries are competitive with the market, represent a reasonable portion of total compensation, and provide a reliable level of income on a regular basis; |
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• |
To reduce the risk that executives will focus on specific short-term outcomes, we do not tie incentive compensation to formulas; |
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• |
To discourage employees from taking risks to meet certain performance goals, we may recover our equity awards should a restatement of earnings occur upon which incentive compensation awards were based or in the event of other wrongdoing by the equity award recipient; and |
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• |
To discourage the taking of a short-term risk at the expense of long-term performance, our equity awards generally have multi-year vesting, which aligns the compensation interests of our executives with the long-term interests of our stockholders. |
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|
• |
Our Chief Financial Officer and Chief Executive Officer review our Company’s compensation policies on a quarterly basis to see if our Company is meeting the above risk management objectives. Our Board also reviews our compensation policies annually to confirm that we are meeting our risk management objectives. |
40
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
Equity Compensation Plan Information
The following chart reflects the number of awards granted under equity compensation plans approved and not approved by stockholders and the weighted average exercise price for such plans as of December 31, 2020.
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Name of Plan |
|
Number of securities to be issued upon exercise of outstanding options, warrants and rights |
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Weighted average exercise price of outstanding options, warrants and rights |
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|
Number of securities remaining available for future issuance under equity compensation plans |
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Equity compensation plans approved by security holders |
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|
|
|
|
|
|
|
|
|
|
|
|
2018 Amended and Restated Equity Incentive Plan(1) |
|
|
1,895,000 |
|
|
$ |
0.58 |
|
|
|
5,202,108 |
|
|
Equity compensation plans not approved by security holders |
|
|
|
|
|
|
|
|
|
|
|
|
|
None. |
|
|
- |
|
|
$ |
- |
|
|
|
- |
|
|
Total |
|
|
1,895,000 |
|
|
$ |
- |
|
|
|
5,202,108 |
|
|
|
(1) |
On December 21, 2018 on our Definitive Information Statement, our majority stockholders ratified our 2018 Equity Plan by written consent, which was approved by our Board on December 13, 2018. |
As of December 31, 2020, there were stock options to purchase 700,000 shares of our Common Stock at a weighted average exercise price of $0.11 per share outstanding that were not subject to any equity compensation plan.
Our Company has a stock-based compensation plan, the 2018 Equity Plan which provides for the granting of equity awards to our employees, directors, consultants, and advisors. The types of equity awards we may grant include: (i) stock options, both qualified incentive and non-qualified; (ii) restricted stock; (iii) restricted stock units; (iv) stock appreciation rights; and (v) other stock awards.
For more information about the material terms of the 2018 Equity Plan please see our Form 8-K filed on December 18, 2018, which is herein incorporated by reference. The awards granted pursuant to the 2018 Equity Plan are subject to a vesting schedule as set forth in individual agreements.
In the event of certain milestones, such as a change-in-control of our Company, any equity award granted under our 2018 Equity Plan will vest immediately.
41
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth the number of shares of our Common Stock beneficially owned as of March 12, 2020, by: (i) those persons known by us to be owners of more than 5% of our Common Stock; (ii) each director; (iii) our Named Executive Officers for 2020; and (iv) all of our Named Executive Officers and directors as a group. Unless otherwise specified in the notes to this table, the address for each person is: c/o Fuse Medical, Inc., 1565 North Central Expressway, Suite 220, Richardson, Texas 75080.
|
Title of Class |
|
Name of Beneficial Owner |
|
Amount and Nature of Beneficial Ownership (1) |
|
|
Percent of Class (1) |
|
||
|
5% Stockholders: |
|
|
|
|
|
|
|
|
|
|
|
Common Stock |
|
Mark W. Brooks (2) |
|
|
57,709,079 |
|
|
|
78.92 |
% |
|
Common Stock |
|
Christopher C. Reeg (3) |
|
|
8,205,555 |
|
|
|
11.22 |
% |
|
Directors and Named Executive Officers: |
|
|
|
|
|
|
|
|
|
|
|
Common Stock |
|
Mark W. Brooks (2) |
|
|
57,709,079 |
|
|
|
78.92 |
% |
|
Common Stock |
|
Christopher C. Reeg (3) |
|
|
8,205,555 |
|
|
|
11.22 |
% |
|
Common Stock |
|
William E. McLaughlin III (4) |
|
|
475,723 |
|
|
|
0.65 |
% |
|
Common Stock |
|
Renato V. Bosita Jr., MD (5) |
|
|
1,475,723 |
|
|
|
2.02 |
% |
|
Common Stock |
|
All directors and executive officers as a group (4 persons) (6) |
|
|
67,866,080 |
|
|
|
92.81 |
% |
|
(1) |
Applicable percentages are based on 73,124,458 shares of Common Stock issued and outstanding as of March 8, 2021. Beneficial ownership is determined by SEC rules and generally includes voting or investment power with respect to securities. Shares of Common Stock underlying options and warrants and convertible notes currently exercisable or convertible, or exercisable or convertible within sixty (60) days of March 8, 2021, are deemed outstanding for computing the percentage of the person holding such securities but are not deemed outstanding for computing the percentage of any other person. Unless otherwise indicated in the footnotes to this table, we believe that each of the stockholders named in the table has sole voting and investment power with respect to the shares of Common Stock indicated as beneficially owned by them. The table includes shares of Common Stock, options and warrants and convertible notes exercisable or convertible into Common Stock and vested or vesting within sixty (60) days of March 8, 2021. |
|
(2) |
Mark W. Brooks. Mr. Brooks is a five percent (5%) stockholder, Named Executive Officer, and a director. Includes 55,000,000 shares of Common Stock owned by NC 143, 2,233,356 shares of Common Stock issuable upon the conversion of the convertible promissory notes (“Notes”) held by NC 143, and 475,723 shares of Common Stock issued to Mr. Brooks for his services to the Board. Mr. Brooks has no dispositive investment power over 475,723 shares of Common Stock awarded pursuant to a RSA until those shares vest. NC 143 may be reached at the following address: 1565 N Central Expressway, Suite 400, Richardson, TX 75080. |
|
(3) |
Christopher C. Reeg. Mr. Reeg is a five percent (5%) stockholder, Named Executive Officer, and a director. Includes 6,611,613 shares of Common Stock owned by RMI, 1,118,219 shares of Common Stock issuable upon the conversion of the Notes held by RMI, and 475,723 shares of Common Stock issued to Mr. Reeg for his services to the Board. Mr. Reeg has no dispositive investment power over 475,723 shares of Common Stock awarded pursuant to a RSA until those shares vest. RMI may be reached at the following address: 1565 N Central Expressway, Suite 500, Richardson, TX 75080. |
|
(4) |
William E. McLaughlin, III. Mr. McLaughlin is a Named Executive Officer and a director. Includes 475,723 shares of Common Stock issued to Mr. McLaughlin for his services to the Board. Mr. McLaughlin has no dispositive investment power over 475,723 shares of Common Stock awarded pursuant to a RSA until those shares vest. |
|
(5) |
Renato V. Bosita, Jr., MD. Dr. Bosita is an Independent Director. Includes 475,723 shares of Common Stock issued to Dr. Bosita for his services to the Board and 1,000,000 shares of Common Stock for providing special services. Dr. Bosita has no dispositive investment power over 1,475,723 shares of Common Stock awarded pursuant to RSAs until those shares vest. |
|
(6) |
All directors and Named Executive Officers as a group. This ownership disclosure includes only the ownership of current Named Executive Officers and directors. |
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.
Change in Control
Between the period July 2016 through October 2016, we obtained three working capital loans in the aggregate amount of $150,000 in exchange for Notes bearing ten percent (10%) interest per annum through December 31, 2016, with principal due and payable, upon demand of the payee. For the periods subsequent to December 31, 2016, the Notes bear interest at eighteen percent (18%) per annum.
42
The Notes were issued as follows: $100,000 to NC 143 and $50,000 to RMI. Messrs. Brooks and Reeg have the sole discretion and right to convert all or any portion of the then unpaid principal and interest balance of the Notes into shares of our Common Stock at a conversion price of $0.08 per share.
On December 19, 2016, we entered into the Stock Purchase Agreement with NC 143 and RMI. Pursuant to the closing of the Stock Purchase Agreement Messrs. Brooks and Reeg beneficially acquired a majority of our issued and outstanding shares of Common Stock, which resulted in a Change-in-Control of our Company.
Notes Payable – Related Parties
On May 6, 2020, we borrowed $180,000 from NC 143 and $20,000 from RMI, in exchange for two promissory notes which are unsecured and bear interest at 0.25% per annum until May 6, 2022, the maturity date, and 10.0% per annum after the maturity date, if not paid in full. Principal and interest are due and payable on the maturity date, provided, however, any payment of principal and interest on the loans is subordinated to payment of all indebtedness under our RLOC.
NCE, LP Leases
As disclosed in “Item 2. Properties” in this Annual Report, we lease an approximately 11,500 square-foot space as our principal executive office from NCE, LP, a real estate investment company that is 100% owned and controlled by Mr. Brooks. The CPM Lease was effective January 1, 2013, and the Fuse Lease was effective July 14, 2017. Both the CPM Lease and the Fuse Lease terminated December 31, 2017, with month-to-month renewals with the option of renegotiation a long-term lease renewal or relocation in the future. For the year ended December 31, 2020, we continued both the CPM Lease and Fuse Lease on month-to-month terms with the option of renegotiating a long-term lease renewal or relocation in the future.
For the year ended December 31, 2020, we paid approximately $168,000 in rent expense, which is reflected in selling, general, administrative, and other expenses in the accompanying consolidated statements of operations to our Financial Statements.
AmBio Contract
As disclosed in “Item 1. Business” and “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this Annual Report, AmBio provides us with payroll processing, employee benefit administration, and related human capital services to us. Mr. Brooks controls and owns 100% of AmBio. As of December 31, 2020, we had balances due to AmBio of approximately $154,051. For the year ended December 31, 2020, approximately $172,221 of fees were paid to AmBio for its services and are reflected in selling, general, and administrative expenses on the accompanying consolidated statements of operations to our Financial Statements.
Operations
As previously disclosed in “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” in this Annual Report, we have entered into various related-party transactions with entities that are owned by or affiliated with our Named Executive Officers and members of our Board. The transactions included sales, purchases, commissions paid for services, and revenues related to services provided to the related party.
MedUSA Group, LLC
MedUSA Group, LLC (“MedUSA”) is a sub-distributor owned and controlled by Mr. Brooks and Mr. Reeg.
For the year ended December 31, 2020, we:
|
|
• |
sold Orthopedic Implant and Biologics products to MedUSA in the amounts of approximately $29,822, which is reflected in net revenues in our accompanying consolidated statements of operations to our Financial Statements; and |
|
|
• |
incurred approximately $3,527,783, in commission costs to MedUSA, which is reflected in commissions in our accompanying consolidated statements of operations to our Financial Statements. |
As of December 31, 2020, we had an outstanding balance due from MedUSA of approximately $398,151. This amount is reflected in accounts receivable, net of allowance in our accompanying consolidated balance sheets to our Financial Statements.
As of December 31, 2020, we had no outstanding balances owed to MedUSA.
Filed as Exhibit 10.48 on our Annual Report on Form 10-K for the year ending December 31, 2019 which we filed with the SEC on March 30, 2020, which is hereinafter incorporated by reference (“2019 Annual Report”), payment terms per the stocking and distribution agreement are 30 days from receipt of invoice. As of December 31, 2020, MedUSA has a past due balance of approximately $398,151.
43
Texas Overlord, LLC
Texas Overlord, LLC (“Overlord”) is an investment holding-company owned and controlled by Mr. Brooks.
During the year ended December 31, 2020, we:
|
|
• |
incurred approximately $190,000, in commission costs to Overlord, which is reflected in commissions in our accompanying consolidated statements of operations to our Financial Statements. |
As of December 31, 2020, we had no outstanding balances owed to Overlord.
N.B.M.J., Inc.
NBMJ, Inc. d/b/a Incare Technology (“NBMJ”) is a durable medical equipment, wound care, and surgical supplies distributor owned and controlled by Mr. Brooks.
During the year ended December 31, 2020, we sold Biologics products to NBMJ in the amount of approximately $24,708, which is reflected in net revenues in our accompanying consolidated statements of operations to our Financial Statements.
As of December 31, 2020, we had no outstanding balances due from NBMJ.
Bass Bone and Spine Specialists
Bass Bone & Spine Specialists (“Bass”) is a sub-distributor of surgical implants that is owned and controlled by Mr. Brooks.
During the year ended December 31, 2020, we:
|
|
• |
sold Orthopedic Implants and Biologics products to Bass in the amounts of approximately $81,350, which is reflected in net revenues in our accompanying consolidated statements of operations to our Financial Statements; |
|
|
• |
incurred approximately $16,885 in commission costs to Bass, which is reflected in commissions in our accompanying consolidated statements of operations to our Financial Statements. |
As of December 31, 2020, we had an outstanding balance due from Bass of approximately $20,117. This amount is reflected in accounts receivable in our accompanying consolidated balance sheets to our Financial Statements.
Filed as Exhibit 10.56 with our 2019 Annual Report, payment terms per the stocking and distribution agreement are 30 days from receipt of invoice.
Sintu, LLC
Sintu, LLC (“Sintu”) is a sub-distributor of surgical implants that is owned and controlled by Mr. Brooks.
For the year ended December 31, 2020, we incurred approximately $575,918 in commission costs to Sintu, which is reflected in commissions in our accompanying consolidated statements of operations to our Consolidated Financial Statements.
Tiger Orthopedics, LLC
Tiger Orthopedics, LLC (“Tiger”) is a sub-distributor of surgical implants that is owned and controlled by Mr. Brooks.
During the year ended December 31, 2020, we sold Orthopedic Implant and Biologics products to Tiger in the amount of approximately $39,922, which is reflected in net revenues in our accompanying consolidated statements of operations to our Financial Statements.
As of December 31, 2020, we had no outstanding balances due from Tiger.
Filed as Exhibit 10.57 with our 2019 Annual Report, payment terms per the stocking and distribution agreement are 30 days from receipt of invoice.
Modal Manufacturing, LLC
Modal is a manufacturer of medical devices owned and controlled by Mr. Brooks.
During the year ended December 31, 2020 we purchased approximately $508,597 in Orthopedic Implants and medical instruments from Modal, which is reflected within inventories, net of allowance in our accompanying consolidated balance sheets to our Financial Statements.
44
As of December 31, 2020, we had an outstanding balance owed to Modal of approximately $417,897. This amount is reflected in accounts payable in our accompanying consolidated balance sheets to our Financial Statements.
As of December 31, 2020, we had no outstanding balances due from Modal.
Filed as 10.64 with our 2019 Annual Report, payment terms per the stocking and distribution agreement are 30 days from receipt of invoice.
Director Independence
We use the definition of “independent” set forth in the listing standards of NASDAQ. Currently, we believe that one (1) of our directors Renato V. Bosita Jr., MD, is considered “independent” according to the NASDAQ standards. Our remaining three (3) directors are Named Executive Officers, and both Mr. Brooks and Mr. Reeg are five percent (5%) stockholders. Thus, the remaining three (3) directors do not qualify as “independent” under the NASDAQ standards.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES.
Our Board pre-approves audit and permissible non-audit services performed by our independent registered public accounting firm, as well as the fees charged for such services. All of the services related to audit fees and audit-related fees charged by Baker Tilly Virchow Krause, LLP (“Baker Tilly”) and Armanino, LLP (“Armanino”) were pre-approved by our Board. The following table shows the fees we paid Armanino for the year ended December 31, 2020 and Baker Tilly for the year ended December 31, 2019.
|
|
|
2020 |
|
|
2019 |
|
||
|
Audit Fees (1)(2) |
|
$ |
96,583 |
|
|
$ |
162,104 |
|
|
Audit Related Fees |
|
|
- |
|
|
|
- |
|
|
Tax Fees |
|
|
- |
|
|
|
- |
|
|
All Other Fees |
|
|
- |
|
|
|
- |
|
|
Total |
|
$ |
96,583 |
|
|
$ |
162,104 |
|
|
|
(1) |
Audit fees consisted principally of services related to our assurance and related services by our principal accountant that are reasonably related to the performance of the audit or review of our annual and quarterly financial statements as well as the review of our registration statements. We engaged Armanino for 2020 and Baker Tilly for 2019, respectively. |
|
|
(2) |
We engaged Armanino effective with the Form 10-Q for the six months ended June 30, 2020 and following incurred $65,000. Prior to this time we incurred $31,583 and $162,104 in fees with Baker Tilly for 2020 and 2019, respectively. |
45
ITEM 15. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES.
|
(a) |
Documents filed as part of the report. |
|
|
(1) |
Financial Statements. See the index to our Financial Statements, which appears on page F-1 hereof. Our Financial Statements listed in the accompanying index to our Financial Statements are filed herewith in response to this Item. |
|
|
(2) |
Financial Statements Schedules. All schedules are omitted because they are not applicable or because the required information is contained in our Financial Statements or notes included in this report. |
|
|
(3) |
Exhibits. The exhibits listed in the accompanying Exhibit Index are filed or incorporated by reference as part of this report. |
|
(b) |
Exhibits. |
|
Exhibit No. |
|
Description |
|
|
|
|
|
2.1 |
|
|
|
|
|
|
|
2.2 |
|
|
|
|
|
|
|
2.3 |
|
|
|
|
|
|
|
3.1 |
|
|
|
|
|
|
|
3.2 |
|
|
|
|
|
|
|
3.3 |
|
|
|
|
|
|
|
4.1 |
|
|
|
|
|
|
|
4.2 |
|
|
|
|
|
|
|
4.3 |
|
|
|
|
|
|
|
4.4 |
|
|
|
|
|
|
|
4.5 |
|
|
|
|
|
|
|
4.6 |
|
|
|
|
|
|
|
4.7 |
|
|
|
|
|
|
46
|
Exhibit No. |
|
Description |
|
|
|
|
|
4.8 |
|
|
|
|
|
|
|
10.1 |
|
|
|
|
|
|
|
10.2 |
|
|
|
|
|
|
|
10.3 |
|
|
|
|
|
|
|
10.4 |
|
|
|
|
|
|
|
10.5 |
|
|
|
|
|
|
|
10.6 |
|
|
|
|
|
|
|
10.7 |
|
|
|
|
|
|
|
10.8 |
|
|
|
|
|
|
|
10.9 |
|
|
|
|
|
|
|
10.10 |
|
|
|
|
|
|
|
10.11 |
|
|
|
|
|
|
|
10.12 |
|
|
|
|
|
|
|
10.13 |
|
|
|
|
|
|
|
10.14 |
|
|
|
|
|
|
|
10.15 |
|
|
|
|
|
|
|
10.16 |
|
|
|
|
|
|
|
10.17 |
|
|
|
|
|
|
|
10.18 |
|
47
|
Exhibit No. |
|
Description |
|
|
|
|
|
|
|
|
|
10.19 |
|
|
|
|
|
|
|
10.20 |
|
|
|
|
|
|
|
10.21* |
|
|
|
|
|
|
|
10.22 |
|
|
|
|
|
|
|
10.23 |
|
|
|
|
|
|
|
10.24 |
|
|
|
|
|
|
|
10.25 |
|
|
|
|
|
|
|
10.26 |
|
|
|
|
|
|
|
10.27 |
|
|
|
|
|
|
|
10.28 |
|
|
|
|
|
|
|
10.29 |
|
|
|
|
|
|
|
10.30 |
|
|
|
|
|
|
|
10.31 |
|
|
|
|
|
|
|
10.32 |
|
|
|
|
|
|
|
10.33 |
|
|
|
|
|
|
|
10.34 |
|
|
|
|
|
|
|
10.35 |
|
48
|
Exhibit No. |
|
Description |
|
|
|
|
|
|
|
|
|
10.36 |
|
|
|
|
|
|
|
10.37 |
|
|
|
|
|
|
|
10.38 |
|
|
|
|
|
|
|
10.39 |
|
|
|
|
|
|
|
10.40 |
|
|
|
|
|
|
|
10.41 |
|
|
|
|
|
|
|
10.42 |
|
|
|
|
|
|
|
13.1 |
|
|
|
|
|
|
|
21.1* |
|
|
|
|
|
|
|
23.1* |
|
|
|
|
|
|
|
23.2* |
|
|
|
|
|
|
|
31.1* |
|
|
|
|
|
|
|
31.2* |
|
|
|
|
|
|
|
32.1* |
|
|
|
|
|
|
|
101.INS * |
|
XBRL Instance Document |
|
|
|
|
|
101.SCH * |
|
XBRL Taxonomy Extension Schema Document |
|
|
|
|
|
101.CAL * |
|
XBRL Taxonomy Extension Calculation Linkbase Document |
|
|
|
|
|
101.DEF * |
|
XBRL Taxonomy Extension Definition Linkbase Document |
|
|
|
|
|
101.LAB * |
|
XBRL Taxonomy Extension Label Linkbase Document |
|
|
|
|
|
101.PRE * |
|
XBRL Taxonomy Extension Presentation Linkbase Document |
* Filed Herewith
49
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
|
|
|
FUSE MEDICAL, INC. |
|
|
|
|
|
Date: March 30, 2021 |
By: |
/s/ Christopher C. Reeg |
|
|
|
Christopher C. Reeg |
|
|
|
Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
|
Date: March 30, 2021 |
By: |
/s/ Christopher C. Reeg |
|
|
|
Christopher C. Reeg |
|
|
|
Chief Executive Officer and Director (Principal Executive Officer) |
|
Date: March 30, 2021 |
By: |
/s/ William E. McLaughlin, III |
|
|
|
William E. McLaughlin, III |
|
|
|
Chief Financial Officer and Director (Principal Financial Officer) |
|
Date: March 30, 2021 |
By: |
/s/ Mark W. Brooks |
|
|
|
Mark W. Brooks President, Director, and Chairman of the Board |
|
Date: March 30, 2021 |
By: |
/s/ Renato V. Bosita, Jr. |
|
|
|
Renato V. Bosita, Jr., MD Director |
50
PART I. FINANCIAL INFORMATION
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The stockholders and the board of directors of Fuse Medical, Inc.
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheet of Fuse Medical, Inc. (the "Company") and subsidiaries as of December 31, 2020, the related consolidated statements of operations, changes in stockholders' equity, and cash flows for the years then ended, and the related notes (collectively referred to as the "consolidated financial statements"). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2020, and the results of their operations and their cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's consolidated financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audit provides a reasonable basis for our opinion.
Prior Period Financial Statements
The financial statements of Fuse Medical, Inc. as of December 31, 2019, were audited by other auditors whose report dated March 30, 2020, expressed an unmodified opinion.
Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the consolidated financial statements and (ii) involved especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Earn-out Liability
As described in Note 2 to the consolidated financial statements, the earn-out liability represents a portion of the purchase consideration from a prior year business combination. The Company has classified the earn-out liability as a Level 3 liability and the fair value of the liability is evaluated each reporting period. As of December 31, 2020, the earn-out liability was $11,936,000. The earn-out liability includes both quantitative and qualitative components. The calculation of the fair value of the earn-out liability used a Monte Carlo simulation, which was applied to remaining estimated earn-out payments discounted back to December 31, 2020. The payment of the earn-out amounts is subject to the Company meeting certain earnings thresholds as detailed in the acquisition agreement and could requirement payments up to $26,000,000.
F-2
The principal considerations for our determination that performing procedures relating to the earn-out liability is a critical audit matter are (i) there was significant judgment and estimation used by management in determining the earn-out liability, which led to an increased level of auditor judgment, subjectivity and effort in performing procedures and in evaluating audit evidence obtained relating to the earn-out liability, including the qualitative component; and (ii) the audit effort involved professionals with specialized skill and knowledge to assist in evaluating certain audit evidence.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included documenting the control environment in which judgements were made, including significant unobservable inputs and data. These procedures also included, among others, the involvement of professionals with specialized skill and knowledge to assist in assessing the inputs and assumptions used in the Monte Carlo simulation. Assessing the inputs and assumptions involved testing the completeness of accuracy of data provided by management and evaluating the reasonableness of management’s assumptions used to develop the significant unobservable inputs.
/s/ Armanino, LLP
We have served as the Company’s auditor since 2020.
Dallas, Texas
F-3
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The stockholders and the board of directors of Fuse Medical, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheet of Fuse Medical, Inc. (the “Company”) as of December 31, 2019 and the related consolidated statements of operations, changes in stockholders’ equity (deficit) and cash flows for the year then ended, and the related notes and schedules (collectively referred to as the financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2019, and the results of its operations and its cash flows for the year then ended, in conformity with generally accepted accounting principles in the United States of America (“GAAP”).
Basis for Opinion
The consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board in the United States (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As a part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits include performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements, Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Baker Tilly US, LLP (formerly Baker Tilly Virchow Krause, LLP)
Plano, Texas
March 30, 2021
F-4
FUSE MEDICAL, INC.
(in dollars, except share data)
|
|
|
December 31, 2020 |
|
|
December 31, 2019 |
|
||
|
Assets |
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
1,187,458 |
|
|
$ |
1,099,310 |
|
|
Accounts receivable, net of allowance of $787,766 and $615,278, respectively |
|
|
4,427,896 |
|
|
|
5,249,653 |
|
|
Inventories, net of allowance of $3,077,728 and $3,805,730, respectively |
|
|
6,981,413 |
|
|
|
7,855,887 |
|
|
Prepaid expenses and other current assets |
|
|
24,203 |
|
|
|
39,850 |
|
|
Total current assets |
|
|
12,620,970 |
|
|
|
14,244,700 |
|
|
Property and equipment, net |
|
|
17,791 |
|
|
|
32,639 |
|
|
Long term accounts receivable, net of allowance of $2,615,834 and $728,000, respectively |
|
|
1,669,510 |
|
|
|
924,646 |
|
|
Intangible assets, net |
|
|
1,138,080 |
|
|
|
1,206,620 |
|
|
Goodwill |
|
|
1,972,886 |
|
|
|
1,972,886 |
|
|
Total assets |
|
$ |
17,419,237 |
|
|
$ |
18,381,491 |
|
|
Liabilities and Stockholders' Equity (Accumulated Deficit) |
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
3,236,592 |
|
|
$ |
2,752,854 |
|
|
Accrued expenses |
|
|
2,584,734 |
|
|
|
3,302,904 |
|
|
Convertible notes payable - related parties |
|
|
150,000 |
|
|
|
150,000 |
|
|
Payroll Protection Program loan |
|
|
361,400 |
|
|
|
- |
|
|
Economic Injury Disaster Loan - short term portion |
|
|
2,241 |
|
|
|
- |
|
|
Senior secured revolving credit facility |
|
|
913,352 |
|
|
|
1,752,501 |
|
|
Total current liabilities |
|
|
7,248,319 |
|
|
|
7,958,259 |
|
|
Notes payable - related parties |
|
|
200,000 |
|
|
|
- |
|
|
Economic Injury Disaster Loan - long term portion |
|
|
147,759 |
|
|
|
- |
|
|
Earn-out liability |
|
|
11,936,000 |
|
|
|
11,645,365 |
|
|
Total liabilities |
|
|
19,532,078 |
|
|
|
19,603,624 |
|
|
Commitments and contingencies |
|
|
- |
|
|
|
- |
|
|
Stockholders’ equity (accumulated deficit): |
|
|
|
|
|
|
|
|
|
Preferred stock, $0.01 par value; 20,000,000 shares authorized; no shares issued and outstanding |
|
|
- |
|
|
|
- |
|
|
Common stock, $0.01 par value; 100,000,000 shares authorized; 73,124,458 shares issued and outstanding as of December 31, 2020 and 2019 |
|
|
731,245 |
|
|
|
731,245 |
|
|
Additional paid-in capital |
|
|
1,184,222 |
|
|
|
642,435 |
|
|
Accumulated deficit |
|
|
(4,028,308 |
) |
|
|
(2,595,813 |
) |
|
Total stockholders’ equity (accumulated deficit) |
|
|
(2,112,841 |
) |
|
|
(1,222,133 |
) |
|
Total liabilities and stockholders’ equity (accumulated deficit) |
|
$ |
17,419,237 |
|
|
$ |
18,381,491 |
|
The accompanying notes are an integral part of these consolidated financial statements.
F-5
FUSE MEDICAL, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in dollars, except share data)
|
|
|
For the Year Ended December 31, 2020 |
|
|
For the Year Ended December 31, 2019 |
|
||
|
Net revenues |
|
$ |
21,398,936 |
|
|
$ |
22,900,277 |
|
|
Cost of revenues |
|
|
8,694,713 |
|
|
|
11,762,790 |
|
|
Gross profit |
|
|
12,704,223 |
|
|
|
11,137,487 |
|
|
Operating expenses |
|
|
|
|
|
|
|
|
|
Selling, general, administrative and other |
|
|
6,541,659 |
|
|
|
8,466,077 |
|
|
Commissions |
|
|
7,086,335 |
|
|
|
5,982,075 |
|
|
Depreciation and amortization |
|
|
104,143 |
|
|
|
107,073 |
|
|
Goodwill impairment |
|
|
- |
|
|
|
932,203 |
|
|
Total operating expenses |
|
|
13,732,137 |
|
|
|
15,487,428 |
|
|
Operating loss |
|
|
(1,027,914 |
) |
|
|
(4,349,941 |
) |
|
Other income (expense): |
|
|
|
|
|
|
|
|
|
Change in fair value of contingent purchase consideration |
|
|
(290,635 |
) |
|
|
1,936,164 |
|
|
Interest expense |
|
|
(94,953 |
) |
|
|
(121,633 |
) |
|
Total other income (expense) |
|
|
(385,588 |
) |
|
|
1,814,531 |
|
|
Operating loss before income tax |
|
|
(1,413,502 |
) |
|
|
(2,535,410 |
) |
|
Income tax expense |
|
|
18,993 |
|
|
|
781,085 |
|
|
Net loss |
|
$ |
(1,432,495 |
) |
|
$ |
(3,316,495 |
) |
|
Loss per common share - basic |
|
$ |
(0.02 |
) |
|
$ |
(0.05 |
) |
|
Loss per common share - diluted |
|
$ |
(0.02 |
) |
|
$ |
(0.05 |
) |
|
Weighted average number of common shares outstanding - basic |
|
|
70,221,566 |
|
|
|
70,221,566 |
|
|
Weighted average number of common shares outstanding - diluted |
|
|
70,221,566 |
|
|
|
70,221,566 |
|
The accompanying notes are an integral part of these consolidated financial statements.
F-6
FUSE MEDICAL, INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS’ EQUITY
(in dollars, except share data)
|
|
|
Common Stock |
|
|
Additional Paid-In |
|
|
Accumulated |
|
|
|
|
|
|||||||
|
|
|
Shares |
|
|
Amount |
|
|
Capital |
|
|
Deficit |
|
|
Total |
|
|||||
|
Balance, December 31, 2018 |
|
|
74,600,181 |
|
|
$ |
746,002 |
|
|
$ |
- |
|
|
$ |
720,682 |
|
|
$ |
1,466,684 |
|
|
Stock based compensation |
|
|
- |
|
|
|
- |
|
|
|
627,678 |
|
|
|
- |
|
|
|
627,678 |
|
|
Restricted stock forfeiture |
|
|
(1,475,723 |
) |
|
|
(14,757 |
) |
|
|
14,757 |
|
|
|
- |
|
|
|
- |
|
|
Net income |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
(3,316,495 |
) |
|
|
(3,316,495 |
) |
|
Balance, December 31, 2019 |
|
|
73,124,458 |
|
|
|
731,245 |
|
|
|
642,435 |
|
|
|
(2,595,813 |
) |
|
|
(1,222,133 |
) |
|
Stock based compensation |
|
|
- |
|
|
|
- |
|
|
|
541,787 |
|
|
|
- |
|
|
|
541,787 |
|
|
Net loss |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
(1,432,495 |
) |
|
|
(1,432,495 |
) |
|
Balance, December 31, 2020 |
|
|
73,124,458 |
|
|
$ |
731,245 |
|
|
$ |
1,184,222 |
|
|
$ |
(4,028,308 |
) |
|
$ |
(2,112,841 |
) |
The accompanying notes are an integral part of these consolidated financial statements.
F-7
FUSE MEDICAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
|
|
For the Year Ended December 31, 2020 |
|
|
For the Year Ended December 31, 2019 |
|
||
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(1,432,495 |
) |
|
$ |
(3,316,495 |
) |
|
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: |
|
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
104,143 |
|
|
|
107,073 |
|
|
Change in fair value of contingent purchase consideration |
|
|
290,635 |
|
|
|
(1,936,164 |
) |
|
Impairment of goodwill |
|
|
- |
|
|
|
932,203 |
|
|
Stock based compensation |
|
|
553,184 |
|
|
|
627,678 |
|
|
Provision for discounts on long term accounts receivable |
|
|
1,887,836 |
|
|
|
645,046 |
|
|
Provision for bad debts and discounts |
|
|
172,488 |
|
|
|
30,269 |
|
|
Provision for slow moving and obsolete inventory |
|
|
(728,002 |
) |
|
|
2,093,858 |
|
|
Deferred income tax expense |
|
|
- |
|
|
|
760,993 |
|
|
Changes in operating assets and liabilities: |
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
649,269 |
|
|
|
(178,354 |
) |
|
Inventories |
|
|
1,602,476 |
|
|
|
1,126,144 |
|
|
Prepaid expenses and other current assets |
|
|
15,647 |
|
|
|
(10,297 |
) |
|
Long term accounts receivable |
|
|
(2,632,698 |
) |
|
|
(1,445,261 |
) |
|
Accounts payable |
|
|
483,738 |
|
|
|
39,935 |
|
|
Accrued expenses |
|
|
(729,567 |
) |
|
|
518,633 |
|
|
Net cash provided by/(used in) operating activities |
|
|
236,654 |
|
|
|
(4,739 |
) |
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
|
Purchases of property and equipment |
|
|
(20,757 |
) |
|
|
(15,318 |
) |
|
Net cash used in investing activities |
|
|
(20,757 |
) |
|
|
(15,318 |
) |
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
|
Net payments/proceeds from senior secured revolving credit facility |
|
|
(839,149 |
) |
|
|
275,053 |
|
|
Payroll protection program proceeds |
|
|
361,400 |
|
|
|
- |
|
|
Economic injury disaster loan proceeds |
|
|
150,000 |
|
|
|
- |
|
|
Proceeds from related party notes payable |
|
|
200,000 |
|
|
|
- |
|
|
Net cash provided by/(used in) financing activities |
|
|
(127,749 |
) |
|
|
275,053 |
|
|
Net increase in cash and cash equivalents |
|
|
88,148 |
|
|
|
254,996 |
|
|
Cash and cash equivalents - beginning of year |
|
|
1,099,310 |
|
|
|
844,314 |
|
|
Cash and cash equivalents - end of year |
|
$ |
1,187,458 |
|
|
$ |
1,099,310 |
|
|
Supplemental disclosure of cash flow information: |
|
|
|
|
|
|
|
|
|
Cash paid for interest |
|
$ |
62,866 |
|
|
$ |
94,545 |
|
The accompanying notes are an integral part of these consolidated financial statements.
F-8
Overview
The Company was initially incorporated in 1968 as American Metals Service, Inc., a Florida corporation. In July 1999, American Metals Service, Inc. changed its name to GolfRounds.com, Inc. and was redomiciled to Delaware through a merger. Effective May 28, 2014, GolfRounds.com, Inc. amended its certificate of incorporation to change its name to Fuse Medical, Inc., and Fuse Medical, LLC, an unrelated entity, merged with and into a wholly-owned subsidiary of Fuse Medical, Inc., with Fuse Medical, LLC surviving as a wholly-owned subsidiary of Fuse Medical, Inc. The transaction was accounted for as a reverse merger. The Company was the legal acquirer, and Fuse Medical, LLC was deemed the accounting acquirer. During 2015, certificates of termination were filed for Fuse Medical, LLC and its two subsidiaries.
On December 19, 2016, the Change-in-Control Date, the Company entered into a Stock Purchase Agreement by and between the Company, NC 143 which is controlled by Mr. Brooks, the Company’s Chairman of the Board and President; and RMI, which is owned and controlled by Mr. Reeg, the Company’s Chief Executive Officer and Secretary. The closing of the Stock Purchase Agreement resulted in a change-in-control of the Company whereby Mr. Brooks and Mr. Reeg beneficially acquired approximately 61.4% of the Company’s issued and outstanding shares of Common Stock, immediately after the Change-in-Control Date.
On December 31, 2017, the Company completed the acquisition of CPM pursuant to the CPM Acquisition Agreement. Subsequent to the Change-in-Control Date, CPM and Company operations are consolidated. On August 1, 2018, the Company completed the acquisition of Maxim Surgical, pursuant to the Maxim Purchase Agreement. As of the Maxim Closing Date, Maxim and Company operations are consolidated.
Nature of Business
The Company is a Manufacturer, distributor, and wholesaler of medical device implants, offering a broad portfolio of Orthopedic Implants and Biologics including: (i) internal and external fixation products; (ii) upper and lower extremity plating and total joint reconstruction implants; (iii) soft tissue fixation and augmentation for sports medicine procedures; (iv) full spinal implants for trauma, degenerative disc disease and deformity indications; and (v) a wide array of osteo-biologics, regenerative tissues and amniotic tissue, which include human allografts, substitute bone materials, and tendons and regenerative tissues and fluids. All of the Company’s medical devices are approved by the FDA for sale in the United States, and all of the Company’s Biologics suppliers are licensed tissue banks accredited by the American Association of Tissue Banks.
The Company’s broad portfolio of Orthopedic Implants and Biologics provide high-quality products to assist surgeons with positive patient outcomes and cost-effective solutions for its customers, which include hospitals, medical facilities, and sub-distributors. The Company operates under exclusive and non-exclusive agreements with certain vendors and supply partners in the geographic territories the Company serves.
The Company continuously reviews and expands its product lines to ensure that they offer a comprehensive, high-quality and cost-effective selection of Orthopedic Implants and Biologics so that the Company can be more relevant to its customer needs while continuing to grow its existing customer base. Additionally, the Company continues to grow its manufacturing operations, both by internal product development as well as the acquisition of existing FDA approved devices.
Going Concern
For the years ended December 31, 2020 and 2019 the Company had accumulated losses of $4,028,308 and $2,595,813, respectively, and a stockholders’ deficit of $2,112,841 and $1,222,133, respectively. Revenues declined by $1,501,341 and $3,441,761 in 2020 and 2019, respectively, as a result of competitive pressures. The Company was out of compliance with its loan covenants at various times during the year ended December 31, 2019 and obtained waivers from the lender to cure the violations, but had reductions of the credit facility amount as a result of the covenant violations. At December 31, 2019 the Company’s management determined that these conditions and events raised substantial doubt about the ability of the Company to continue as a going concern.
As of and for the year ended December 31, 2020, the Company’s management noted that its gross profit was $12,704,223 compared to $11,137,487 for the year ended December 31, 2019, representing an increase of $1,566,736, or approximately 14%. Additionally, the Company’s selling, general, administrative, and other expenses (“SG&A”) were $6,541,659 compared to SG&A of $8,466,077 for the year ended December 31, 2019, representing a decrease of $1,924,418 or approximately 23%. These changes in the Company’s operating results produced in a net loss of $1,432,495 for the year ended December 31, 2020, compared to net loss of $3,316,495 for the year ended December 31, 2019, reflecting a decrease in the Company’s net loss of $1,884,000, or approximately 57%.
The Company’s primary sources of liquidity are cash from operations and its RLOC with Amegy Bank. At December 31, 2020, the Company’s current assets exceeded its current liabilities by $5,372,651 (“Working Capital”), which included $1,187,458 in cash and cash equivalents. Cash from the Company’s operations and net borrowings on its RLOC supports the Company’s Working Capital
F-9
needs. As of December 31, 2020, the Company had sufficient collateral, had approximately $1.3 million in borrowing compacity and was in compliance with the RLOC debt covenants. The Company expects to renew its RLOC maturing May 4, 2021.
Further, the Company’s management expects to (i) continue successful execution of new product and licensing deal rollouts and key rebranding initiatives, (ii) expand new retail sales channel opportunities, and (iii) additional strategic cost reductions will continue.
Based on these operating results, key initiatives, and the Company’s liquidity position as of December 31, 2020, the Company’s management has determined that these conditions and events supported the Company’s ability to continue as a going concern
Note 2. Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries, CPM and Maxim. Intercompany transactions have been eliminated in consolidation.
Use of Estimates
The preparation of the consolidated financial statements in accordance with generally accepted accounting principles in the United States of America (GAAP), requires the Company’s management to make estimates and assumptions that affect the Company’s reported amounts in the consolidated financial statements.
Actual results could differ from those estimates. Significant estimates on the accompanying consolidated financial statements include the allowances for doubtful accounts, valuation of inventories, the Company’s effective income tax rate and the fair value calculations of stock-based compensation, goodwill, finite lived intangibles and the earn-out liability.
Segment Reporting
In accordance with Accounting Standards Update (“ASU”) No. 280, “Segment Reporting,” the Company uses the management approach for determining its reportable segments. The management approach is based upon the way that management reviews performance and allocates resources. The Company’s Chief Executive Officer serves as the Company’s chief operating decision maker, and his management team reviews operating results on a consolidated basis for purposes of allocating resources and evaluating the financial performance of the Company. The Company has integrated the operations of both CPM and Maxim. Accordingly, the Company has determined that it has one operating segment and, therefore, one reporting segment.
Reclassification
Long term accounts receivable, net of allowance was previously reported as a component of current assets as accounts receivable, net of allowance, in the Company’s accompanying consolidated balance sheets. Long term accounts receivable reflects Cases where the patient has obtained a letter of protection, (“LOP”). A LOP is a contract that provides that the medical providers will be paid from any proceeds received from settlement of litigation of the underlying cause of action with respect to the event that necessitated medical goods and services. Once the medical provider receives payment, then the medical provider pays the Company’s invoice which payment is generally greater than 365 days from date of service. The LOP provides medical providers with greater certainty of full payment. This reclassification had no effect on the previously reported total assets or net loss.
Loss Per Common Share
Loss per common share, basic is calculated by dividing the net loss attributable to common stockholders by the weighted-average number of Common Stock, outstanding during the period, without consideration of Common Stock equivalents. Shares of restricted stock are included in the basic weighted-average number of Common Stock outstanding from the time they vest.
Diluted loss per common share is computed by dividing net income/(loss) by the weighted-average number of Common Stock equivalents outstanding for the period determined using the treasury stock method. For the years ended December 31, 2020 and 2019, the Company excluded the effects of outstanding stock options, convertible notes and, to the extent in the money, restricted stock as their effects were antidilutive due to the Company’s operating loss during these periods. (See Note 10, “Stockholders’ Equity” for the terms and conditions of restricted stock).
For the year ended December 31, 2020, restricted common stock shares and common stock equivalents of 2,245,762 have been excluded from diluted earnings per share because to include them would have been antidilutive (See Note 10, “Stockholders Equity” for the terms and conditions of restricted stock).
F-10
Fair Value Measurements
Fair value is the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants. The Company classifies assets and liabilities recorded at fair value under the fair value hierarchy based upon the observability of inputs used in valuation techniques. Observable inputs (highest level) reflect market data obtained from independent sources, while unobservable inputs (lowest level) reflect internally developed market assumptions. The fair value measurements are classified under the following hierarchy:
Level 1—Observable inputs that reflect quoted market prices (unadjusted) for identical assets and liabilities in active markets;
Level 2—Observable inputs, other than quoted market prices, that are either directly or indirectly observable in the marketplace for identical or similar assets and liabilities, quoted prices in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets and liabilities; and
Level 3—Unobservable inputs that are supported by little or no market activity that are significant to the fair value of assets or liabilities.
F-11
In connection with the CPM Acquisition, the Company initially recorded a $19,244,543 liability related to the Earn-Out portion of the purchase consideration. The Company has classified the Earn-Out liability as a Level 3 liability and the fair value of the Earn-Out liability will be evaluated each reporting period and changes in its fair value will be included in the Company’s earnings. The Earn-Out payments are based on the financial performance of the Company between the period of January 1, 2018, and December 31, 2034. The base amount of the Earn-Out is $16,000,000 with an additional bonus payment of $10,000,000. The payments of the base and bonus Earn-Out amounts are subject to the Company meeting certain earnings thresholds as detailed in the CPM Acquisition Agreement. The Earn-Out payments during the Earn-Out period specified above, ranges from $0 to $26,000,000.
The fair value of the Earn-Out liability was calculated using the Monte Carlo simulation, which was then applied to estimated Earn-Out payments with a discount rate of three percent (3%). To determine the fair value of the Earn-Out liability, the Company’s management evaluates assumptions that require significant judgement. Significant assumptions used for estimating the Earn-Out liability included: (i) EBITDA margins increasing from one percent (1%) to ten percent (10%) over the next four years; and (ii) revenue growth of approximately five percent (5%) over the next five years, and approximately two percent (2%) thereafter.
The Earn-Out liability, which represented contingent consideration associated with the CPM Acquisition, is recorded as a liability. This liability is subject to re-measurement to fair value at each reporting date until the contingency is resolved and the changes in fair value are recognized in the consolidated statements of operations at each reporting period.
For the year ended December 31, 2020 and 2019, the Company has determined the earnings threshold as detailed in the CPM Acquisition Agreement was not met and therefore no payments for either the base or bonus Earn-Out tranches would be achieved, based on the Company’s 2020 and 2019 financial performance.
The Earn-Out was remeasured to fair value under the probability weighted income approach. As a result, the fair value of the Earn-Out liability was increased by $290,635 from $11,645,365 to $11,936,000 in 2020 and reduced by $1,936,164 from $13,581,529 to $11,645,365 in 2019 and reflected as “Change in fair value of contingent purchase consideration” on our Consolidated Financial Statements.
The estimated fair value of certain financial instruments, including cash and cash equivalents, accounts receivable, accounts payable and accrued expenses are carried at historical cost basis, which approximates their fair values because of the short-term nature of these instruments. The recorded values of notes payable approximate their respective fair values based upon their effective interest rates.
Financial Instruments
The estimated fair value of certain financial instruments, including cash and cash equivalents, accounts receivable, accounts payable and accrued expenses are carried at historical cost basis, which approximates their fair values because of the short-term nature of these instruments. The recorded values of notes payable approximate their respective fair values based upon their effective interest rates.
Cash and Cash Equivalents
The Company considers highly liquid investments with maturities of three months or less at the time of purchase to be cash equivalents. There were no cash equivalents at December 31, 2020, and December 31, 2019. The Company’s cash is concentrated in one large financial institution. The amount of cash held at that financial institution may at times exceed federally insured limits of $250,000 per financial institution. The Company has not experienced any financial institution losses from inception through December 31, 2020. As of December 31, 2020 and 2019, there were deposits of $761,671 and $599,309, respectively, which were greater than federally insured limits.
Accounts Receivable and Allowances
Accounts receivable are non-interest bearing and are stated at gross invoice amounts less an allowance for doubtful accounts receivable and an allowance for contractual discount pricing. Credit is extended to customers based on an evaluation of their financial condition, industry reputation, and other judgmental factors considered by the Company’s management. The Company generally does not require collateral or other security interest to support accounts receivable. Based on trends and specific factors, the customer’s credit terms may be modified, including required payment upon delivery.
The Company performs regular on-going credit evaluations of its customers as deemed relevant. As events, trends, and circumstance warrant, the Company’s management estimates the amounts that are more likely than not to be uncollectible. These amounts are recognized as bad debt expense and are reflected within selling, general, administrative and other expenses on the Company’s accompanying consolidated statement of operations.
When accounts are deemed uncollectible, they are often referred to the Company’s outside legal firm for litigation. Accounts deemed uncollectible are written-off in the period when the Company has exhausted its efforts to collect overdue and unpaid receivables or otherwise has evaluated other circumstances that indicate that the Company should abandon such efforts. Accounts deemed uncollectible are removed from the Company’s accounts receivable portfolio, with a corresponding offset to the allowance for doubtful accounts receivable. The Company may record additional allowances for doubtful accounts based on known trends and
F-12
expectations to ensure the Company’s accounts receivable portfolio is recorded at net realizable value. Specific allowances are re-evaluated and adjusted as additional facts and information become available. Previously written-off accounts receivable subsequently collected are recognized as a reduction of bad debt expense when funds are received.
The Company’s management estimates its allowance for contractual discount pricing, by evaluating specific accounts where information indicates the customer is offered contractual pricing and discount allowances. In these arrangements, the Company’s management uses assumptions and judgement, based on the best available facts and circumstances to record a specific allowance for the amounts due from those customers. The allowance is offset by a corresponding reduction to revenue. These specific allowances are re-evaluated, analyzed, and adjusted as additional information becomes available to determine the total amount of the allowance. The Company may record additional allowances based on trends and expectations to ensure the Company’s accounts receivable portfolio is recorded at net realizable value.
Inventories
Inventories are stated at the lower of cost or net realizable value (first-in, first-out) less an allowance for slow-moving inventory, expired inventory, and inventory obsolescence. Inventories consist entirely of finished goods and include internal and external fixation products; upper and lower extremity plating and total joint reconstruction; soft tissue fixation and augmentation for sports medicine procedures; spinal implants for trauma, degenerative disc disease, and deformity indications (collectively, Orthopedic Implants) and osteo-biologics and regenerative tissue which include human allografts, substitute bone materials and tendons, as well as regenerative tissues and fluids (collectively, Biologics). The Company reviews the market value of inventories whenever events and circumstances indicate that the carrying value of inventories may not be recoverable from the estimated future sales price less cost of disposal and normal gross profit. In cases where the market values are less than the carrying value, a write-down is recognized equal to an amount by which the carrying value exceeds the net realizable value of inventories.
During 2019, the Company revised its estimate for slow moving and obsolete inventory. As a result, the Company’s management increased the inventory reserve for slow moving and obsolescence by $2,093,859. In 2020 based on sales activity for the year and inventory on hand at the end of the year, the Company decreased the reserve $728,002, which is reflected in inventory and cost of revenues on the Company’s consolidated balance sheets and statements of operations, respectively.
Property and Equipment
Property and equipment are recorded at cost less accumulated depreciation. Depreciation is computed using the straight-line method over the estimated useful lives of the related assets per the following table. Expenditures for additions and improvements are capitalized, while repairs and maintenance are expensed as incurred. The Company reviews long-lived assets for impairment annually or whenever changes in circumstances indicate that the carrying amount of an asset might not be recoverable.
|
Category |
|
Amortization Period |
|
Computer equipment |
|
3 years |
|
Furniture and fixtures |
|
3 years |
|
Office equipment |
|
3 years |
|
Software |
|
3 years |
Upon the retirement or disposition of property and equipment, the related cost and accumulated depreciation is removed. A gain is recorded when consideration received is more than the disposed asset’s cost, net of depreciation, and a loss is recorded when consideration received is less than the disposed asset’s cost, net of depreciation.
Long-Lived Assets
The Company reviews other long-lived assets for indicators of impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. The evaluation is performed at the lowest level of identifiable cash flows, which is at the individual asset level or the asset group level. The undiscounted cash flows expected to be generated by the related assets are estimated over their useful life based on updated projections. If the evaluation indicates that the carrying amount of the assets may not be recoverable, any potential impairment is measured based upon the fair value of the related assets or asset group as determined by an appropriate market appraisal or other valuation technique. Assets classified as held for sale, if any, are recorded at the lower of carrying amount or fair value less costs to sell.
Goodwill and Other Intangible Assets
Goodwill is determined based on an acquisition purchase price in excess of the fair value of identified net assets acquired. Intangible assets with lives restricted by contractual, legal or other means are amortized over their useful lives.
F-13
Goodwill is not amortized, but is tested in the fourth quarter each year for impairment, or more frequently if an event occurs or circumstances change that would more likely than not reduce the fair value of the reporting unit below its carrying amount. The Company performs its annual, or interim, goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount. If the carrying value of a reporting unit exceeds its fair value, an impairment charge is recognized for the amount by which the carrying amount exceeds the reporting unit’s fair value. For the years ended December 31, 2020 and 2019 an impairment charge of zero and $932,203 was recognized, respectively.
ASU 350-30-35-18 indicates that an intangible asset that is not subject to amortization shall be tested for impairment annually and more frequently if events or changes in circumstances indicate that it is more likely than not that the asset is impaired. The Company’s 510(k) intangible asset has an indefinite life. The Company does not believe that triggering event has occurred as of December 31, 2020.
The Company’s intangible assets subject to amortization consist primarily of acquired non-compete agreements and customer relationships. Amortization expense is calculated using the straight-line method over the asset’s expected useful life.
Revenue Recognition
The Company’s revenues are generated from the sales of Orthopedic Implants and Biologics to support orthopedic surgeries. The Company obtains purchase orders from its customers for the sale of its products which sets forth the general terms and conditions including line item pricing and payment terms (generally due upon receipt). The Company recognizes revenue when its customers obtain control over the assets (generally when the title passes upon shipment or when a product is utilized in a surgery) and it is probable that the Company will collect substantially all the amounts due. Individual promised goods are the Company’s only performance obligation.
Due to the nature of its products, the Company’s product returns have been historically immaterial.
The Company includes shipping and handling fees in net revenues. Shipping and handling costs, associated with outbound freight after control over a product has transferred to a customer are accounted for as a fulfillment cost and are included in cost of goods sold on the Company’s accompanying consolidated statements of operations.
Revenue Differentiation
The Company measures sales volume based on medical procedures in which the Company’s products are sold and used (Cases). The Company considers Cases resulting from direct sales to medical facilities to be Retail Cases and Cases resulting from sales to third-parties, such as non-medical facilities, distributors, or sub-distributors, to be Wholesale Cases. Some of the Company’s sales for Wholesale Cases are on a consignment basis with a third-party. When consigned, the revenue is not recorded until the device is implanted in a patient during surgery. In the Company’s industry, Retail Cases are typically sold at higher price points than Wholesale Cases, resulting in greater revenue and gross profit per Case.
|
|
|
Year Ended |
|
|||||
|
|
|
December 31, 2020 |
|
|
December 31, 2019 |
|
||
|
Category |
|
|
|
|
|
|
|
|
|
Retail |
|
$ |
19,092,800 |
|
|
$ |
19,082,561 |
|
|
Wholesale |
|
|
2,306,136 |
|
|
|
3,817,716 |
|
|
Total |
|
$ |
21,398,936 |
|
|
$ |
22,900,277 |
|
Cost of Revenues
Cost of revenues consists of (i) cost of goods sold, (ii) freight and shipping costs for items sold to customers, (iii) cost of storage, (iv) investment in medical instruments, which are expensed when acquired, (v) inventory shrink, and (vi) an estimate for slow-moving inventory, expired inventory, and inventory obsolescence.
Income Taxes
As a result of the CPM Acquisition, the Company became the sole managing member of CPM and as a result, began consolidating the financial results of CPM. CPM is treated as a disregarded entity for U.S. federal and most applicable state and local income tax purposes. As a disregarded entity, CPM is not subject to U.S. federal and most applicable state and local income tax purposes. Any taxable income or loss generated by CPM is included in the taxable income or loss of the Company. As a result of the Maxim Acquisition, the Company and Maxim will elect to file a consolidated tax return for the period after acquisition.
The Company uses the asset and liability method to compute the differences between the tax basis of assets and liabilities and the related financial amounts. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount that more likely than not will be realized. The Company has deferred tax assets and liabilities that reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Deferred tax assets are subject to periodic recoverability assessments. Realization of the deferred tax assets, net of deferred tax liabilities, is principally dependent upon achievement of projected future taxable income.
F-14
The Company records a liability for uncertain tax positions when it is probable that a loss has been incurred and the amount can be reasonably estimated. As of December 31, 2020 and 2019, the Company had no liabilities for uncertain tax positions. The Company's policy is to recognize interest and penalties related to income tax matters as a component of income tax expense. The Company continually evaluates expiring statutes of limitations, audits, proposed settlements, changes in tax law, and new authoritative rulings.
Stock-Based Compensation
Stock-based compensation expense is measured at the grant date fair value of the award and is expensed over the requisite service period. For employee stock-based awards, the Company calculates the fair value of the award on the date of grant using the Black-Scholes option pricing model. Determining the fair value of stock-based awards at the grant date under this model requires judgment, including estimating volatility, employee stock option exercise behaviors and forfeiture rates. The assumptions used in calculating the fair value of stock-based awards represent the Company's best estimates, but these estimates involve inherent uncertainties and the application of management judgment. For non-employee stock-based awards, the Company calculates the fair value of the award on the date of grant in the same manner as employee awards, however, the awards are revalued at the end of each reporting period and the pro-rata compensation expense is adjusted accordingly until such time the non-employee award is fully vested, at which time the total compensation recognized to date shall equal the fair value of the stock-based award as calculated on the measurement date, which is the date at which the award recipient’s performance is complete. The estimation of stock-based awards that will ultimately vest requires judgment, and to the extent actual results or updated estimates differ from original estimates, such amounts are recorded as a cumulative adjustment in the period estimates are revised.
Recent Accounting Pronouncements
The Company considers the applicability and impact of all ASUs issued, both effective and not yet effective.
In February 2016, the Financial Accounting Standards Board (the “FASB”) issued ASU No. 2016-02, “Leases”, which requires a lessee to record a right of use asset and a corresponding lease liability on the balance sheet for all leases with terms longer than twelve (12) months. ASU 2016-02 is effective for all interim and annual reporting periods beginning after December 15, 2018. The Company adopted this guidance effective January 1, 2020. A modified retrospective transition approach is required for lessees for capital and operating leases existing at, or entered after, the beginning of the earliest comparative period presented in the financial statements, with certain practical expedients available. The Company presently leases office space on a month to month basis as described in Note 9. As such, the adoption of the standard was not material.
In January 2017, the FASB issued ASU 2017-04, “Intangibles-Goodwill and Other” (Topic 350): Simplifying the Test for Goodwill Impairment. This guidance eliminates Step 2 from the goodwill impairment test, instead requiring an entity to recognize a goodwill impairment charge for the amount by which the goodwill carrying amount exceeds the reporting unit’s fair value. The Company adopted ASU 2017-04 effective December 31, 2019, on a prospective basis.
Other recent accounting pronouncements issued by the FASB, including its Emerging Issues Task Force, the American Institute of Certified Public Accountants, and the SEC did not or are not believed by the Company’s management to have a material impact on the Company's present or future consolidated financial statements.
Note 3. Property and Equipment
Property and equipment consisted of the following at December 31, 2020 and 2019:
|
|
|
December 31, 2020 |
|
|
December 31, 2019 |
|
||
|
Computer equipment and software |
|
$ |
49,918 |
|
|
$ |
51,303 |
|
|
Office equipment |
|
|
- |
|
|
|
20,333 |
|
|
Property and equipment costs |
|
|
49,918 |
|
|
|
71,636 |
|
|
Less: accumulated depreciation |
|
|
(32,127 |
) |
|
|
(38,997 |
) |
|
Property and equipment, net |
|
$ |
17,791 |
|
|
$ |
32,639 |
|
Depreciation expense for the year ended December 31, 2020 and 2019 was $35,605 and $25,653 respectively. Additionally, $42,476 of fully depreciated assets were retired during 2020.
F-15
Note 4. Goodwill and Intangible Assets
The following table summarizes the Company’s goodwill and other intangible assets:
|
|
|
December 31, 2020 |
|
|
December 31, 2019 |
|
|
Amortization period (years) |
||
|
Intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
Non-compete agreements |
|
$ |
- |
|
|
$ |
61,766 |
|
|
2 |
|
510k product technology |
|
|
704,380 |
|
|
|
704,380 |
|
|
Indefinite |
|
Customer relationships |
|
|
555,819 |
|
|
|
555,819 |
|
|
11 |
|
Total intangible assets |
|
|
1,260,199 |
|
|
|
1,321,965 |
|
|
|
|
Less: accumulated amortization |
|
|
(122,119 |
) |
|
|
(115,345 |
) |
|
|
|
Intangible assets, net |
|
|
1,138,080 |
|
|
|
1,206,620 |
|
|
|
|
Goodwill |
|
$ |
1,972,886 |
|
|
$ |
1,972,886 |
|
|
Indefinite |
Amortization expense for the years ended December 31, 2020 and 2019 was $68,538 and $81,420 respectively.
The Company’s intangible assets subject to amortization consist primarily of acquired non-compete agreements, and customer relationships.
The following is a schedule by year of the Company’s future amortization expense related to the finite-live intangible assets as of December 31, 2020:
|
Year Ended December 31, |
|
|
|
|
|
2021 |
|
$ |
50,532 |
|
|
2022 |
|
|
50,532 |
|
|
2023 |
|
|
50,532 |
|
|
2024 |
|
|
50,532 |
|
|
2025 |
|
|
50,532 |
|
|
Beyond |
|
|
181,040 |
|
|
|
|
$ |
433,700 |
|
The Company performed its annual goodwill impairment test by comparing the fair value of the reporting units with its carrying amount. The fair value of the reporting units was determined utilizing both a discounted cash flow and merger and acquisitions methodology in the conclusion of value. The fair value exceeded its carrying value for 2020. The carrying value exceeded its fair value and a goodwill impairment charge of $932,203 was recognized for 2019.
Note 5. Senior Secured Revolving Credit Facility
On December 29, 2017, the Company became party to the RLOC with Amegy Bank. The RLOC established an asset-based senior secured revolving credit facility in the amount of $5,000,000. The RLOC contains customary representation, warranties, covenants, events of default, and is collateralized by substantially all of the Company’s assets. The Company’s Chairman of the Board and President initially personally guaranteed fifty percent (50%) of the outstanding RLOC amount.
On September 21, 2018, the Company executed the First Amendment to the RLOC with Amegy Bank. The First Amendment (i) waived the Company’s events of default under the RLOC through the fiscal quarter ended September 30, 2018, and (ii) added a covenant that the Company achieve quarterly net income of $700,000 or more for the fiscal quarter ending on September 30, 2018.
On November 19, 2018, the Company executed the Second Amendment to the RLOC with Amegy Bank. The Second Amendment (i) waived the Company’s events of default under the RLOC, (ii) reduced the aggregate limit of the RLOC to $4,000,000, (iii) extended the maturity date to November 4, 2019, (iv) revised the variable interest rate to the one-month LIBOR rate plus four percent (4.00%) per annum, and (v) amended the financial covenants to state that the Company will not permit: the Fixed Charge Coverage Ratio of any calendar quarter end from and after the quarter ending June 30, 2019, to be less than 1.25 to 1.00; EBITDA to be less than $700,000 for the fiscal quarter ending December 31, 2018, and $100,000 for the fiscal quarter ending March 31, 2019; modified the event of default related to consecutive quarterly losses to be applicable from and after the quarter ending June 30, 2019.
On May 9, 2019, the Company executed the Third Amendment to the RLOC with Amegy Bank. Pursuant to the Third Amendment, Amegy Bank (i) waived the Company’s events of default under the RLOC, (ii) reduced the aggregate limit of the RLOC to $3,500,000, (iii) reduced the limit of credit card exposure to $500,000, (iv) reduced borrowing base component of Inventory to 30%, (v) amended the financial covenants to state that the Company will not permit EBITDA to be less than $100,000 for the fiscal quarter
F-16
ending June 30, 2019 and $500,000 for the fiscal quarter ending September 30, 2019 and (vi) rescinded the Loan Sweep Feature, requiring the Company to give notice of each requested loan by delivery of Advance Request to Amegy Bank.
On December 18, 2019, the Company executed the Fourth Amendment to the RLOC with Amegy Bank. Pursuant to the Fourth Amendment, Amegy Bank (i) waived the Company’s events of default under the RLOC, (ii) reduced the aggregate limit of the RLOC to $2,750,000, (iii) reduced and limited the annual salary of the Company’s Chairman of the Board and President, Mr. Brooks, to not exceed $550,000, (iv) amended the financial covenants to state that the Company will not permit EBITDA to be less than $600,000 for the fiscal quarter ending December 31, 2019 and $125,000 for the fiscal quarter ending March 31, 2020, (v) extended the termination date of the RLOC to May 4, 2020 and (vi) provides for our Chairman of the Board and President to personally guarantee one hundred percent (100%) of the outstanding RLOC amount.
On May 21, 2020, the Company executed the Fifth Amendment to the RLOC with Amegy Bank. Pursuant to the Fifth Amendment, Amegy Bank (i) waived the Company’s events of default under the RLOC, (ii) amended the financial covenants to state that the Company will not permit EBITDA to be less than $25,000 for the six months ended September 30, 2020, and (iii) extended the termination date of the RLOC until November 4, 2020.
In conjunction with executing the Fifth Amendment to the RLOC, the Company obtained an additional $200,000 in capital in the form of subordinated debt from affiliates of Messrs. Brooks and Reeg. Specifically, on May 6, 2020, the Company borrowed $180,000 NC 143, and $20,000 from RMI, in exchange for two promissory notes which are unsecured and bear interest at 0.25% per annum until May 6, 2022, the maturity date, and 10.0% per annum after the maturity date, if not paid in full. Principal and interest are due and payable on the maturity date, provided, however, any payment of principal and interest on the loans is subordinated to payment of all indebtedness under the RLOC.
On November 12, 2020 the Company executed a Sixth Amendment to the RLOC with Amegy Bank, which extended the termination date of our RLOC to May 4, 2021. The Company was in compliance with all RLOC covenants as of December 31, 2020.
The outstanding balance of the RLOC was $913,352 and $1,752,501 at December 31, 2020 and 2019, respectively. Interest expense incurred on the RLOC was $61,036 and $94,633 for the year ended December 31, 2020 and 2019, respectively, and is reflected in interest expense on the Company’s accompanying consolidated statements of operations. Accrued interest on the RLOC at December 31, 2020 and 2019 was $2,947 and $4,437, respectively, and is reflected in accrued expenses on the Company’s accompanying consolidated balance sheets. At December 31, 2020, the effective interest rate was calculated to be 4.60%.
Note 6. Notes Payable – Related Parties
During July 2016 through October 2016, the Company obtained three working capital loans from NC 143 and RMI in the aggregate amount of $150,000 in exchange for Notes bearing ten percent (10%) interest per annum until December 31, 2016 (“Maturity Date”) and eighteen percent (18%) interest per annum for periods subsequent to the Maturity Date. The Notes remain outstanding and principal and interest are due and payable upon demand of the payee and at the holder’s sole discretion. The Notes’ holders have the right to convert all or any portion of the then unpaid principal and interest balance into shares of the Company’s Common Stock at a conversion price of $0.08 per share. On May 6, 2020, the Company borrowed $180,000 from NC 143 and $20,000 from RMI, in exchange for two promissory notes which are unsecured and bear interest at 0.25% per annum until May 6, 2022, the maturity date, and 10.0% per annum after the maturity date, if not paid in full. Principal and interest are due and payable on the maturity date, provided, however, any payment of principal and interest on the loans is subordinated to payment of all indebtedness under the RLOC.
During the years ended December 31, 2020 and 2019, interest expense of $27,407 and $27,000, respectively, is reflected in interest expense on the Company’s accompanying consolidated statements of operations. As of December 31, 2020, and 2019, accrued interest was $113,503 and $86,096, respectively, which is reflected in accrued expenses on the Company’s accompanying consolidated balance sheets.
Note 7. Paycheck Protection Program Loan
On April 11, 2020, the Company received approval from the SBA to fund the Company’s request for a PPP Loan created as part of the recently enacted CARES Act administered by the SBA. In connection with the PPP Loan, the Company has entered into a promissory note in the principal amount of $361,400. In accordance with the requirements of the CARES Act, the Company intends to use the proceeds from the PPP Loan primarily for payroll costs. The PPP Loan is scheduled to mature on April 11, 2022, has a 1.00% interest rate, and is subject to the terms and conditions applicable to all loans made pursuant to the PPP. The PPP Loan is reflected in short term liabilities in the Company’s accompanying consolidated balance sheets as the Company expects the PPP Loan will be forgiven effective during 2020.
As of December 31, 2020, the Company incurred approximately $2,720 in accrued interest related to the PPP Loan, which is reflected in accrued expenses on the Company’s accompanying consolidated balance sheets. For the year ended December 31, 2020, the Company incurred approximately $2,720 in interest expense related to the PPP Loan, which is reflected in interest expense on the Company’s accompanying consolidated statements of operations. The Company did not incur interest expense related to the PPP Loan for the year ended December 31, 2019.
F-17
Note 8. Economic Injury Disaster Loan
On May 12, 2020, the Company executed the standard loan documents required for securing a loan from the SBA under its EIDL assistance program in light of the impact of the COVID-19 pandemic on the Company’s business. Pursuant to the SBA Loan Agreement, the principal amount of the EIDL Loan was $150,000, with proceeds to be used for working capital purposes. Interest accrues at the rate of 3.75% per annum. Installment payments, including principal and interest, are due monthly beginning May 12, 2021 (twelve months from the date of the SBA Loan Agreement) in the amount of $731. The balance of principal and interest is payable thirty years from the date of the SBA Loan Agreement. The EIDL Loan is reflected in long term liabilities in the Company’s accompanying consolidated balance sheets. In connection therewith, the Company received a $10,000 advance, which does not have to be repaid and is reflected as an offset in Selling, General, Administrative and Other Expenses in the Company’s accompanying consolidated statements of operations.
EIDL Loan interest expense incurred was approximately $3,791 and zero for the years ended December 31, 2020 and 2019, respectively, and is reflected in interest expense on the Company’s accompanying consolidated statements of operations. Accrued interest on the EIDL Loan at December 31, 2020 and 2019 was $3,791 and zero, respectively, and is reflected in accrued expenses on the Company’s accompanying consolidated balance sheets.
Note 9. Commitments and Contingencies
Operating Leases
The Company leases office space under a noncancelable operating lease agreement, from a real estate investments company that is owned and controlled by the Company’s Chairman of the Board and President. This lease terminated December 31, 2017 with month-to-month renewals. The lease requires monthly payments of $14,000. Annual rent expense was approximately $168,000 and $168,000 for the years ended December 31, 2020 and 2019, and is included in selling, general, administrative and other expenses on the Company’s accompanying consolidated statement of operations.
The Company leases office equipment under two noncancelable operating lease agreements which expire March 2021 and March 2024. In aggregate, these office equipment leases require monthly payments of approximately $849. Rent expense for the equipment leases totaled approximately $10,000 and $10,000 for the years ended December 31, 2020 and 2019, respectively, and is included in selling, general, administrative and other expenses on the Company’s accompanying consolidated statement of operations.
The following is a schedule by years of future minimum rental payments required under operating leases that have initial or remaining noncancelable lease terms in excess of one year as of December 31, 2020:
|
Year Ended December 31, |
|
|
|
|
|
2021 |
|
$ |
7,749 |
|
|
2022 |
|
|
7,261 |
|
|
2023 |
|
|
7,261 |
|
|
2024 |
|
|
1,210 |
|
|
2025 |
|
|
- |
|
|
|
|
$ |
23,481 |
|
Note 10. Stockholders’ Equity
The 2018 Equity Plan is the Company’s stock-based compensation plan which the Company’s Board adopted on April 5, 2017, and subsequently amended and restated on December 13, 2018. The 2018 Equity Plan provides for the granting of equity awards, including qualified incentive and non-qualified stock options, stock appreciation awards, and restricted stock awards to employees, directors, consultants, and advisors. Awards granted pursuant to the 2018 Equity Plan are subject to a vesting schedule set forth in individual agreements.
The Company’s management estimates the fair value of stock-based compensation utilizing the Black-Scholes option pricing model. Black-Scholes option pricing is calculated using several variables, including the expected option term, expected volatility of the Company’s stock price over the expected option term, expected risk-free interest rate over the expected option term, expected dividend yield rate over the expected option term, and an estimate of expected forfeiture rates. The Company’s management believes this valuation methodology is appropriate for estimating the fair value of stock options granted to employees and directors which are subject to ASC Topic 718 requirements. The Company’s management estimates of fair value may not be reflective of actual future values or amounts ultimately realized by recipients of these grants. The Company recognizes stock compensation expense on a straight-line basis over the requisite service period for each award.
The Company’s management utilizes the simplified method to estimate the expected life for stock options granted to employees, as the Company does not have sufficient historical data regarding stock option exercises. The risk-free interest rate is based on the U.S.
F-18
Treasury yields with terms equivalent to the expected life of the related option at the time of the grant. Dividend yield is based on historical trends. While the Company’s management believes these estimates are reasonable, the compensation expense recorded would increase if the expected life was increased, a higher expected volatility was used, or if the expected dividend yield increased.
The Company made an accounting policy election to account for forfeitures when they occur, versus estimating the number of awards that are expected to vest, in accordance with ASU 2016-09.
The following table summarizes the assumptions the Company utilized to record compensation expense for stock options granted to the Company’s product advisory board members, certain key employees, and marketing representatives:
|
Assumptions |
|
For the Year Ended December 31, 2020 |
|
|
For the Year Ended December 31, 2019 |
|
||
|
Expected term (years) |
|
|
- |
|
|
|
10.0 |
|
|
Expected volatility |
|
|
0.00 |
% |
|
105.35 - 118.52% |
|
|
|
Weighted-average volatility |
|
|
0.00 |
% |
|
|
108.52 |
% |
|
Risk-free interest rate |
|
|
0.000 |
% |
|
|
2.670 |
% |
|
Dividend yield |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
Expected forfeiture rate |
|
n/a |
|
|
n/a |
|
||
Non-Qualified Stock Option Awards
For the years ended December 31, 2020 and 2019, the Board granted zero and 1,650,000, respectively, of non-qualified stock option awards (“NQSO”) to the Company’s Scientific Advisory Board members, certain key employees and marketing representatives. For the year ended December 31, 2020 and December 31, 2019, the Company amortized $553,184 and $627,678 relating to the vesting of NQSOs, which is included in selling, general, administrative, and other expenses on the Company’s accompanying consolidated statement of operations. The Company will recognize $315,165 as an expense in future periods as the NQSOs vest. The Company recognizes stock compensation expense on a straight-line basis over the requisite service period for each award, which are subject to a vesting schedule as set forth in individual agreements.
A summary of the Company’s stock option activity during the year ended December 31, 2020 is presented below:
|
|
|
No. of Shares |
|
|
Weighted Average Exercise Price |
|
|
Weighted Average Remaining Contractual Term |
|
|
Aggregate Intrinsic Value |
|
||||
|
Balance outstanding at December 31, 2019 |
|
|
3,948,333 |
|
|
$ |
0.61 |
|
|
|
6.08 |
|
|
$ |
157,000 |
|
|
Granted |
|
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
Exercised |
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
Forfeited |
|
|
(753,333 |
) |
|
|
— |
|
|
|
|
|
|
|
|
|
|
Expired |
|
|
(600,000 |
) |
|
|
— |
|
|
|
|
|
|
|
|
|
|
Balance outstanding at December 31, 2020 |
|
|
2,595,000 |
|
|
$ |
0.65 |
|
|
|
5.92 |
|
|
$ |
56,000 |
|
|
Exercisable at December 31, 2020 |
|
|
1,663,333 |
|
|
$ |
0.58 |
|
|
|
4.81 |
|
|
$ |
56,000 |
|
Restricted Common Stock
The non-vested restricted stock awards (“RSAs”), as of December 31, 2020, were granted to the Company’s Board members as compensation. These awards vest only upon: (i) the occurrence of one of the Accelerating Events: (a) a Change in Control (as defined in RSA Agreement); or (b) listing of the Company’s Common Stock on either NYSE or NASDAQ Stock Market; and (ii) the director’s delivery to the Company of a Notice of Acceleration of Vesting (as defined in RSA Agreement), within the Acceleration Notice Period (as defined in RSA Agreement).
As of December 31, 2020, it was not probable that the performance conditions on the outstanding options would be met, therefore, no expense has been recorded for the years ended December 31, 2020 and 2019.
F-19
The following table summarizes the RSAs activity for the year ended December 31, 2020:
|
|
Number of Shares |
|
|
Fair Value |
|
|
Weighted Average Grant Date Fair Value |
|
|||
|
Non-vested, December 31, 2019 |
|
2,902,892 |
|
|
$ |
1,382,800 |
|
|
$ |
0.48 |
|
|
Granted |
|
- |
|
|
|
- |
|
|
|
- |
|
|
Vested |
|
- |
|
|
|
- |
|
|
|
- |
|
|
Forfeited |
|
- |
|
|
|
- |
|
|
|
- |
|
|
Non-vested, December 31, 2020 |
|
2,902,892 |
|
|
$ |
1,382,800 |
|
|
$ |
0.48 |
|
Note 11. Income Taxes
The Company began consolidating the financial results of CPM effective January 1, 2016, when the Company became the sole managing member of CPM. CPM is treated as a disregarded entity for U.S. federal and most applicable state and local income taxes. As a disregarded entity, CPM is not subject to U.S. federal and certain state and local income taxes. Beginning January 1, 2019, taxable income or loss generated by CPM is included in its taxable income or loss of the Company.
The Company is subject to U.S. federal income taxes, in addition to state and local income taxes.
The components of income tax expense (benefit) are as follows:
|
|
|
For the Year Ended December 31, 2020 |
|
|
For the Year Ended December 31, 2019 |
|
||
|
|
|
|
|
|
|
|
|
|
|
Federal |
|
$ |
- |
|
|
$ |
- |
|
|
State |
|
|
18,993 |
|
|
|
20,092 |
|
|
|
|
|
18,993 |
|
|
|
20,092 |
|
|
Deferred: |
|
|
|
|
|
|
|
|
|
Federal |
|
|
- |
|
|
|
760,993 |
|
|
State |
|
|
- |
|
|
|
- |
|
|
|
|
|
- |
|
|
|
760,993 |
|
|
Total Income tax expense |
|
$ |
18,993 |
|
|
$ |
781,085 |
|
F-20
Significant components of the Company’s deferred income tax assets and liabilities are as follows:
|
|
|
December 31, 2020 |
|
|
December 31, 2019 |
|
||
|
Deferred tax assets: |
|
|
|
|
|
|
|
|
|
Net operating loss carryforward |
|
$ |
786,751 |
|
|
$ |
373,033 |
|
|
Accounts receivable |
|
|
165,431 |
|
|
|
282,088 |
|
|
Compensation |
|
|
480,774 |
|
|
|
364,605 |
|
|
Inventory |
|
|
588,966 |
|
|
|
734,524 |
|
|
Other |
|
|
5,083 |
|
|
|
- |
|
|
Total deferred tax assets |
|
|
2,027,005 |
|
|
|
1,754,250 |
|
|
Deferred tax liabilities: |
|
|
|
|
|
|
|
|
|
Intangibles |
|
|
(206,723 |
) |
|
|
(218,427 |
) |
|
Property and equipment |
|
|
(3,736 |
) |
|
|
(6,239 |
) |
|
Total deferred tax liabilities |
|
|
(210,459 |
) |
|
|
(224,666 |
) |
|
Deferred tax assets, net |
|
|
1,816,546 |
|
|
|
1,529,584 |
|
|
Valuation allowance: |
|
|
|
|
|
|
|
|
|
Beginning of year |
|
|
(1,529,584 |
) |
|
|
- |
|
|
Increase during year |
|
|
(286,962 |
) |
|
|
(1,529,584 |
) |
|
Ending balance |
|
|
(1,816,546 |
) |
|
|
(1,529,584 |
) |
|
Net deferred tax asset |
|
$ |
- |
|
|
$ |
- |
|
A valuation allowance is established if it is more likely than not that all or a portion of the deferred tax asset will not be realized. The Company recorded a valuation allowance in 2020 due to the uncertainty of realization. Management believes that based upon the history of losses that the Company has incurred to date and its projection of future taxable operating income for the foreseeable future, it is more likely than not that the Company will not be able to realize the tax benefit associated with the deferred tax assets. The valuation allowance established during the year ended December 31, 2020 was $1,816,546
At December 31, 2020, the Company estimates it has approximately $3,746,433 of net operating loss carryforwards of which $899,331 will expire during 2021 through 2037. The Company’s management believes its tax positions are more likely than not of being upheld upon examination. As such, the Company has not recorded a liability for unrecognized tax positions. As of December 31, 2020, the Company’s tax years 2017 through 2019 remain open for IRS audit. The Company has not received a notice of audit from the IRS for any of the open tax years.
A reconciliation of income tax computed at the U.S. statutory rate to the effective income tax rate is as follows:
|
|
|
For the Year Ended December 31, 2020 |
|
|
For the Year Ended December 31, 2019 |
|
||
|
Statutory U.S. federal income tax rate |
|
|
21.0 |
% |
|
|
21.0 |
% |
|
Other reconciling items |
|
|
4.2 |
% |
|
|
0.9 |
% |
|
Permanent differences |
|
|
0.0 |
% |
|
|
8.2 |
% |
|
State income taxes, net of federal tax benefit |
|
|
-1.3 |
% |
|
|
-0.6 |
% |
|
Deferred tax asset valuation allowace |
|
|
-25.6 |
% |
|
|
-60.3 |
% |
|
Effective income tax rate |
|
|
-1.7 |
% |
|
|
-30.8 |
% |
Our effective income tax rates for the years ended December 31, 2020 and 2019 were -1.7% and -30.8%, respectively. The decrease between years is driven by the valuation allowance allocated to the deferred tax asset for the current period.
F-21
Note 12. Concentrations
Concentration of Revenues, Accounts Receivable and Suppliers
For the years ended December 31, 2020 and 2019, the following significant customers had an individual percentage of total revenue of approximately ten percent (10%) or greater:
|
|
|
For the Year Ended December 31, 2020 |
|
|
For the Year Ended December 31, 2019 |
|
||
|
Top customer |
|
|
12.63 |
% |
|
|
6.08 |
% |
|
Totals |
|
|
12.63 |
% |
|
|
6.08 |
% |
There were no customers with a concentration of accounts receivable over 10% as of December 31, 2020 or 2019.
For the years ended December 31, 2020 and 2019, the following significant suppliers represented ten percent (10%) or greater of goods purchased:
|
|
|
For the Year Ended December 31, 2020 |
|
|
For the Year Ended December 31, 2019 |
|
||
|
Supplier 1 |
|
|
25.60 |
% |
|
|
21.60 |
% |
|
Supplier 2 (Related party) |
|
|
6.90 |
% |
|
|
12.80 |
% |
|
Totals |
|
|
32.50 |
% |
|
|
34.40 |
% |
Note 13. Related Party Transactions
Lease with 1565 North Central Expressway, LP
For its principal executive office, the Company leases an aggregate of approximately 11,500 square-foot space at 1565 North Central Expressway, Suite 220, Richardson, Texas 75080 from NCE, LP, a real estate investment company that is owned and controlled by Mr. Brooks. The Company’s lease arrangement includes (1) the lease acquired pursuant to the CPM Acquisition effective January 1, 2013 and (2) a lease effective July 14, 2017 entered-into to support the Company’s relocation of its Fort Worth, Texas corporate offices to CPM’s executive offices. Both leases terminated December 31, 2017, with month-to-month renewals thereafter. For the year ended December 31, 2020 and 2019, the Company paid approximately $168,000 and $168,000 in rent expense, which is reflected in selling, general, administrative, and other expenses in the Company’s accompanying consolidated statements of operations.
AmBio Contract
The Company engaged AmBio, a Texas licensed PEO, to provide payroll processing, employee benefit administration, and related human capital services effective January 1, 2017. Mr. Brooks owns and controls AmBio. As of December 31, 2020, AmBio operations support approximately 44 FTEs. Of those 44 FTEs, 37 FTEs directly support the Company, 6 FTEs support the operations of other companies and the Company shares 1 FTE with other companies.
As of December 31, 2020, and December 31, 2019, the Company owed amounts to AmBio of approximately $154,051 and $169,944, respectively, which is reflected in the accounts payable on the Company’s accompanying consolidated balance sheets. For the year ended December 31, 2020, and 2019, the Company paid approximately $172,221 and $212,045, respectively, to AmBio in administrative fees, which is reflected in selling, general, administrative, and other expenses in the Company’s accompanying consolidated statements of operations.
Operations
Historically, the Company conducts various related-party transactions with entities that are owned by or affiliated with Mr. Brooks and Mr. Reeg. These transactions are based on wholesale contractual agreements that the Company’s management believes are on terms and conditions substantially similar to other third-party contractual agreements. As described more fully below, these transactions include: selling and purchasing of inventory on wholesale basis, commissions earned and paid, and shared-service fee arrangements.
F-22
MedUSA Group, LLC
MedUSA is a sub-distributor owned and controlled by Mr. Brooks and Mr. Reeg.
During the years ended December 31, 2020 and 2019, the Company:
|
|
• |
sold Orthopedic Implants and Biologics products to MedUSA in the amounts of approximately $29,822 and $796,430, respectively, which is reflected in net revenues in the Company’s accompanying consolidated statements of operations; |
|
|
• |
purchased approximately zero and $31, respectively, of Orthopedic Implants, medical instruments, and Biologics from MedUSA, which is reflected in inventories, net of allowance in the Company’s accompanying consolidated balance sheets; and |
|
|
• |
incurred approximately $3,527,783 and $2,462,783, respectively, in commission costs, which are reflected in commissions in the Company’s accompanying consolidated statements of operations. |
As of December 31, 2020, and December 31, 2019, the Company had outstanding balances due from MedUSA of approximately $398,151 and $555,421, respectively. These amounts are reflected in accounts receivable, net of allowance in the Company’s accompanying consolidated balance sheets.
As of December 31, 2020, the Company had no outstanding balances owed to MedUSA. As of December 31, 2019, the Company had no outstanding balances owed to MedUSA, which was reflected in accounts payable in the Company’s accompanying consolidated balance sheets.
Payment terms per the stocking and distribution agreement with MedUSA are 30 days from receipt of invoice.
Texas Overlord, LLC
Overlord is an investment holding-company owned and controlled by Mr. Brooks.
During the years ended December 31, 2020 and 2019, the Company:
|
|
• |
purchased approximately zero and $24,967, respectively, of Orthopedic Implants, medical instruments, and Biologics from Overlord, which is reflected in inventories, net of allowance on the Company’s accompanying consolidated balance sheets; and |
|
|
• |
incurred approximately $190,000 and $165,000, respectively, in commission costs to Overlord, which is reflected in commissions in the Company’s accompanying consolidated statements of operations. |
As of December 31, 2020, and December 31, 2019, the Company had no outstanding balances due from Overlord.
As of December 31, 2020, and December 31, 2019, the Company had no outstanding balances owed to Overlord.
N.B.M.J., Inc.
NBMJ is a durable medical equipment, wound care, and surgical supplies distributor owned and controlled by Mr. Brooks.
During the years ended December 31, 2020 and 2019, the Company sold Biologics products to NBMJ in the amounts of approximately $24,708 and $443,056, respectively, which is reflected in net revenues in the Company’s accompanying consolidated statements of operations;
As of December 31, 2020, and December 31, 2019, the Company had no outstanding balances due from NBMJ.
Bass Bone and Spine Specialists
Bass operates as a sub-distributor of surgical implants and is owned and controlled by Mr. Brooks.
During the years ended December 31, 2020 and 2019, the Company:
|
|
• |
sold Orthopedic Implants and Biologics products to Bass in the amounts of approximately $81,350 and $113,473, respectively, which is reflected in net revenues in the Company’s accompanying consolidated statements of operations; |
|
|
• |
incurred approximately $16,885 and $80,272, respectively, in commission costs to Bass, which is reflected in commissions in the Company’s accompanying consolidated statements of operations. |
As of December 31, 2020, and December 31, 2019, the Company has outstanding balances due from Bass of approximately $20,117 and $7,149, respectively. These amounts are reflected in accounts receivable, net of allowance in the Company’s accompanying consolidated balance sheets.
F-23
Payment terms per the stocking and distribution agreement are 30 days from receipt of invoice.
F-24
Sintu, LLC
Sintu operates as a sub-distributor of surgical implants and is owned and controlled by Mr. Brooks.
During the years ended December 31, 2020 and 2019, the Company: incurred approximately $575,918 and $467,195, respectively, in commission costs to Sintu, which is reflected in commissions in the Company’s accompanying consolidated statements of operations.
Tiger Orthopedics, LLC
Tiger operates as a sub-distributor of surgical implants and is owned and controlled by Mr. Brooks.
During the years ended December 31, 2020 and 2019, the Company sold Orthopedic Implants and Biologics products to Tiger in the amounts of approximately $39,922 and $283,435, respectively, which is reflected in net revenues in the Company’s accompanying consolidated statements of operations.
As of December 31, 2020, and December 31, 2019, the Company has outstanding balances due from Tiger of approximately zero and $30,525, respectively. These amounts are reflected in accounts receivable, net of allowance in the Company’s accompanying consolidated balance sheets.
Payment terms per the stocking and distribution agreement are 30 days from receipt of invoice.
Modal Manufacturing, LLC
Modal is a manufacturer of medical devices owned and controlled by Mr. Brooks.
During the years ended December 31, 2020 and 2019, the Company purchased approximately $508,597 and $1,082,643 respectively, in Orthopedic Implants and medical instruments from Modal, which is reflected within inventories, net of allowance on the Company’s accompanying consolidated balance sheets.
As of December 31, 2020, and 2019, the Company had outstanding balances due from Modal of approximately zero and $40,700, respectively. This is reflected in accounts receivable in the Company’s accompanying audited consolidated balance sheets.
Payment terms per the stocking and distribution agreement are 30 days from receipt of invoice. As of December 31, 2020, the Company owes Modal a balance of $417,897.
Note 13. Subsequent Events
In preparing these financial statements, the Company has evaluated events and transactions for potential recognition or disclosure through March 25, 2020, the date the financial statements were available to be issued.
Severe Weather Conditions. During February 2021, the state of Texas experienced record-breaking winter weather which resulted in dangerous road conditions, widespread power outages, water outages and contamination of the water supply, which caused significant disruptions through-out Texas, including the Company’s corporate office and distribution center for several days.
The Company’s executive management team immediately focused on the health and wellbeing of the Company’s employees, while also working to minimize the impact on its customers. The Company resumed full operations on March 1, 2021 and are currently working to address the Cases, sales support, and administrative functions backlog. Generally, surgical cases have been rescheduled to subsequent weeks. (For more information, see Item 1A. “Risk Factors—Risks Related to Our Business and Industry”).
The Company’s management concluded there are no other material events or transactions for potential recognition or disclosure.
F-25
|
|
|
Exhibit 10.21 |
CPM MEDICAL CONSULTANTS, LLC
AMENDMENT TO THE STOCKING AND SUBDISTRIBUTION AGREEMENT
This amendment to the stocking and subdistribution agreement ("Amendment"), dated as of January 1st, 2020 ("Effective Date"), is entered into by and between CPM Medical Consultants, LLC, a Texas Limited Liability Company having its principal place of business at 1565 N. Central Expressway, Suite 200, Richardson, TX 75080 ("Distributor"), and MedUSA Group, LLC, a Texas series limited liability company having its principal place of business at Dominion Plaza 17304 Preston Rd, ste 800 Dallas, Tx 75252 ("Subdistributor", and together with Distributor, the "Parties," and each, a "Party").
Whereas, both Parties agree to amend the agreement to allow the Distributor to bill all revenues for the Subdistributor and pay the Subdistributor a rate of 45% of the total sales of the case.
Compensation will be made on all collected sales by the 15th of the following month.
Now therefore, the parties hereto agree that the Agreement is amended as follows:
|
|
1. |
The amendment to the Agreement is amended to change the billing and commission rate |
|
|
2. |
Except as amended hereby, the Agreement remains in full force and effect as written. |
In Witness Whereof, both parties have executed this Amendment effective as of the Effective Date.
|
CPM Medical Consultants, LLC |
MedUSA Group, LLC |
|||
|
/s/ Christopher C. Reeg |
/s/ Mark W. Brooks |
|||
|
Name: Christopher C. Reeg |
Name: Mark W. Brooks |
|||
|
Title: COO |
Title: Manager |
|||
|
Date: February 24, 2020 |
Date: February 24, 2020 |
|||
|
|
|
|
Exhibit 21.1
Fuse Medical, Inc.
(A Delaware Corporation)
List of Significant Subsidiaries
(As of December 31, 2019)
CPM Medical Consultants, LLC
Palm Springs Partners, LLC D/B/A Maxim Surgical
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in both (i) registration statement No. 333-220906 on Form S-8 of Fuse Medical, Inc., filed with the Securities and Exchange Commission (the “SEC”) on October 11, 2017, and (ii) registration statement No. 333-229167 on Form S-8 of Fuse Medical, Inc., filed with the SEC on January, 8, 2019, of our report dated March 30, 2021, relating to the consolidated financial statements of Fuse Medical, Inc., which appear in this Annual Report on Form 10-K for the fiscal year ended December 31, 2020.
/s/ Baker Tilly US, LLP
Baker Tilly US, LLP (formerly Baker Tilly Virchow Krause LLP)
Plano, Texas
March 30, 2021
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in both (i) registration statement No. 333-220906 on Form S-8 of Fuse Medical, Inc., filed with the Securities and Exchange Commission (the “SEC”) on October 11, 2017, and (ii) registration statement No. 333-229167 on Form S-8 of Fuse Medical, Inc., filed with the SEC on January, 8, 2019, of our report dated March 30, 2021, relating to the consolidated financial statements of Fuse Medical, Inc., which appear in this Annual Report on Form 10-K for the fiscal year ended December 31, 2020.
/s/ Armanino, LLP
Armanino, LLP
Dallas, Texas
March 30, 2021
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
I, Christopher C. Reeg, certify that:
|
|
1. |
I have reviewed this annual report on Form 10-K of Fuse Medical, Inc.; |
|
|
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
|
|
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
|
|
4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
|
|
a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
|
|
b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
|
|
c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
|
|
d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
|
|
a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
|
|
b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 30, 2021
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/s/ Christopher C. Reeg |
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Christopher C. Reeg Chief Executive Officer (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
I, William E. McLaughlin, III, certify that:
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1. |
I have reviewed this annual report on Form 10-K of Fuse Medical, Inc.; |
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
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5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
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a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
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b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 30, 2021
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/s/ William E. McLaughlin, III |
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William E. McLaughlin, III Chief Financial Officer (Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Fuse Medical, Inc. (the “Company”) on Form 10-K for the year ended December 31, 2020, as filed with the Securities and Exchange Commission on the date hereof, I, Christopher Reeg, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
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1. |
The annual report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and |
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2. |
The information contained in the annual report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
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/s/ Christopher C. Reeg |
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Christopher C. Reeg Chief Executive Officer (Principal Executive Officer) |
Dated: March 30, 2021
In connection with the annual report of Fuse Medical, Inc. (the “Company”) on Form 10-K for the year ended December 31, 2020, as filed with the Securities and Exchange Commission on the date hereof, I, William McLaughlin, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
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1. |
The annual report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and |
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2. |
The information contained in the annual report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
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/s/ William E. McLaughlin, III |
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William E. McLaughlin, III Chief Financial Officer (Principal Financial Officer) |
Dated: March 30, 2021