NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(All
amounts in thousands, except share, per share and stated value per share)
(UNAUDITED)
NOTE
1 – ORGANIZATION AND DESCRIPTION OF BUSINESS
Staffing
360 Solutions, Inc. (“we,” “us,” “our,” “Staffing 360,” or the “Company”)
was incorporated in the State of Nevada on December 22, 2009, as Golden Fork Corporation, which changed its name to Staffing 360 Solutions,
Inc., ticker symbol “STAF,” on March 16, 2012. On June 15, 2017, the Company reincorporated in the State of Delaware. We
are a rapidly growing public company in the international staffing sector. Our high-growth business model is based on finding and acquiring,
suitable, mature, profitable, operating, domestic and international staffing companies. Our targeted consolidation model is focused specifically
on the accounting and finance, information technology (“IT”), engineering, administration (“Professional”) and
light industrial (“Commercial”) disciplines.
NOTE
2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis
of Presentation and Principles of Consolidation
These
consolidated financial statements and related notes are presented in accordance with generally accepted accounting principles in the
United States (“GAAP”), expressed in U.S. dollars. All amounts are in thousands, except share and par values, unless otherwise
indicated.
The
accompanying consolidated financial statements reflect all adjustments including normal recurring adjustments, which, in the opinion
of management, are necessary to present fairly the financial position, results of operations and cash flows for the periods presented
in accordance with the GAAP. All significant intercompany balances and transactions have been eliminated in consolidation.
Liquidity
The
accompanying financial statements do not include any adjustments or classifications that may result from the possible inability of the
Company to continue as a going concern. The accompanying financial statements have been prepared on a basis which contemplates the realization
of assets and the satisfaction of liabilities in the normal course of business. As shown in the accompanying financial statements as
of the quarter ended April 2, 2022, the Company has an accumulated deficit of $86,345
and a working capital deficit of $19,449.
At April 2, 2022, we had total gross debt of $9,444
and $1,355
of cash on hand. We have historically met our
cash needs through a combination of cash flows from operating activities, term loans, promissory notes, convertible notes, private placement
offerings and sales of equity. Our cash requirements are generally for operating activities and debt repayments. Subsequent to the quarter
ended April 2, 2022, we have continued to fund our operations and make required capital payments utilizing our available cash and, as
of the date of this filing, we have approximately $4,612 in available cash.
The
financial statements included in this quarterly report have been prepared assuming that we will continue as a going concern, which
contemplates the recoverability of assets and the satisfaction of liabilities in the normal course of business. Significant assumptions
underlie this belief, including, among other things, that there will be no material adverse developments in our business, liquidity,
capital requirements and that our credit facilities with our lenders will remain available to us.
Further,
our note issued to Jackson Investment Group, LLC includes certain financial customary covenants and the Company has had instances
of non-compliance. Management has historically been able to obtain from Jackson waivers of any non-compliance and management expects
to continue to be able to obtain necessary waivers in the event of future non-compliance; however, there can be no assurance that the
Company will be able to obtain such waivers, and should Jackson refuse to provide a waiver in the future, the outstanding debt under
the agreement could become due immediately, which exceeds our current cash balance.
The
entire outstanding principal balance of the 2020 Jackson Note shall be due and payable on September 30, 2022. The debt represented by
the 2020 Jackson Note continues to be secured by substantially all of the Company’s domestic subsidiaries’ assets pursuant
to the Amended and Restated Security Agreement with Jackson, dated September 15, 2017. The Company also has a $25,000 revolving loan
facility with MidCap. The MidCap Facility has a maturity date of September 1, 2022 and although we believe we will be able to either
renew this agreement or find an alternative lender, this has yet to be completed.
Going
Concern
The
accompanying financial statements have been prepared in conformity with GAAP, which contemplate continuation of the Company as
a going concern. Historically, the Company has funded such payments either through cash flow from operations or the raising of capital
through additional debt or equity. If the Company is unable to obtain additional capital, such payments may not be made on time.
The
Company’s negative working capital and liquidity position combined with the uncertainty generated by the economic reaction to the
COVID-19 pandemic raise substantial doubt about the Company’s ability to continue as a going concern.
COVID-19
The
novel Coronavirus disease 2019 (“COVID-19”), is continuing to impact worldwide economic activity, and activity
in the United States and the United Kingdom where our operations are based. The nature of work of the contractors we support mostly are
on the site of our clients. As a result, we are subject to the plans and approaches of our clients to work during this period. This includes
whether they support remote working when they have decided to close their facilities. To the extent that our clients have decided to
or are required to close their facilities or not permit remote work when they decide to close facilities, we would no longer generate
revenue and profit from that client. Developments such as social distancing and shelter-in-place directives have impacted the Company’s
ability to deploy its staffing workforce effectively thereby impacting contracts with customers in the Company’s Commercial Staffing
and Professional Staffing business streams where we have seen declines in revenues during Fiscal 2021 and 2020. While expected to be
temporary, prolonged workforce disruptions can negatively impact sales in fiscal year 2022 and the Company’s overall liquidity.
The
full impact of the COVID-19 outbreak continues to evolve as of the date of this report. As such, it is uncertain as to the full magnitude
that the pandemic will have on the Company’s financial condition, liquidity, and future results of operations. Management is actively
monitoring the impact of the global situation on its financial condition, liquidity, operations, industry, and workforce. Given the daily
evolution of the COVID-19 outbreak and the global responses to curb its spread, the Company is not able to estimate the effects of the
COVID-19 outbreak on its results of operations, financial condition, or liquidity for fiscal year 2022.
The
Company’s negative working capital and liquidity position combined with the uncertainty generated by the economic reaction to the
COVID-19 pandemic contribute to the substantial doubt about the Company’s ability to continue as a going concern.
Use
of Estimates
The
preparation of consolidated financial statements in accordance with GAAP requires management to make estimates and assumptions that affect
the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses
in the reporting period. The Company bases its estimates and assumptions on current facts, historical experience and various other factors
that it believes to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying
values of assets and liabilities and the accrual of costs and expenses that are not readily apparent from other sources. The actual results
experienced by the Company may differ materially and adversely from its estimates. To the extent there are material differences between
estimates and the actual results, future results of operations will be affected. Significant estimates for the quarters ended April
2, 2022 and April 3, 2021 include the valuation of intangible assets, including goodwill, liabilities associated with testing long-lived
assets for impairment and valuation reserves against deferred tax assets.
Goodwill
Goodwill
relates to amounts that arose in connection with various acquisitions and represents the difference between the purchase price and the
fair value of the identifiable intangible and tangible net assets when accounted for using the purchase method of accounting. Goodwill
is not amortized, but it is subject to periodic review for impairment. Events that would indicate impairment and trigger an interim impairment
assessment include, but are not limited to, current economic and market conditions, a decline in the equity value of the business, a
significant adverse change in certain agreements that would materially affect reported operating results, business climate or operational
performance of the business and an adverse action or assessment by a regulator.
In
accordance with ASU No. 2011-08, Intangibles-Goodwill and Other (Topic 350) Testing Goodwill for Impairment, or ASU 2011-08, the Company
is required to review goodwill by reporting unit for impairment at least annually or more often if there are indicators of impairment
present. During the year ended January 2, 2021 the Company changed its annual measurement date from the first day of the fiscal fourth
quarter to the last day of the fiscal year end. A reporting unit is either the equivalent of, or one level below, an operating segment.
The Company early adopted the provisions in ASU 2017-04, which eliminates the second step of the goodwill impairment test. As a result,
the Company’s goodwill impairment tests include only one step, which is a comparison of the carrying value of each reporting unit
to its fair value, and any excess carrying value, up to the amount of goodwill allocated to that reporting unit, is impaired.
The
carrying value of each reporting unit is based on the assignment of the appropriate assets and liabilities to each reporting unit. Assets
and liabilities were assigned to each reporting unit if the assets or liabilities are employed in the operations of the reporting unit
and the asset and liability is considered in the determination of the reporting unit fair value.
The
Company recognized an impairment with respect to its Staffing UK reporting unit of $3,104
during the fourth quarter ended January
1, 2022. The impairment resulted from a continued decline in that reporting unit’s revenue which experienced significant and prolonged
declines as a result of the COVID-19 pandemic. To determine the impairment, the Company employed a combination of market approach (valuations
using comparable company multiples), income approach (discounted cash flow analysis) and prevailing market conditions to derive the fair
value of the reporting unit. Under ASU 2017-04, which the Company early adopted, the impairment amount represents the excess of the carrying
value over the fair value of the reporting unit.
No
impairments to goodwill were recognized during the quarter ended April 2, 2022. In assessing potential impairment to goodwill,
management has made assumptions regarding partial recovery from the COVID-19 pandemic. If the assumptions utilized by management are
not achieved and declines to operations are greater than anticipated, while failing to achieve growth in future periods as a result of
the prolonged impact of COVID-19 pandemic, an impairment to goodwill could be recorded and such amount could be material to the financial
statements. A reduction in the projected long-term operating performance of the reporting units, market declines, changes in discount
rates or other conditions could result in a material impairment in the future.
Revenue
Recognition
The
Company recognizes revenue in accordance with ASC 606, the core principle of which is that an entity should recognize revenue to depict
the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be
entitled to receive in exchange for those goods or services. To achieve this core principle, five basic criteria must be met before revenue
can be recognized: (1) identify the contract with a customer; (2) identify the performance obligations in the contract; (3) determine
the transaction price; (4) allocate the transaction price to performance obligations in the contract; and (5) recognize revenue when
or as the Company satisfies a performance obligation.
The
Company accounts for revenues when both parties to the contract have approved the contract, the rights and obligations of the parties
are identified, payment terms are identified, and collectability of consideration is probable. Payment terms vary by client and the services
offered.
The
Company has primarily two main forms of revenue – temporary contractor revenue and permanent placement revenue. Temporary contractor
revenue is accounted for as a single performance obligation satisfied over time because the customer simultaneously receives and consumes
the benefits of the Company’s performance on an hourly or daily basis. The contracts stipulate weekly or monthly billing, and the
Company has elected the “as invoiced” practical expedient to recognize revenue based on the hours incurred at the contractual
rate as we have the right to payment in an amount that corresponds directly with the value of performance completed to date. Permanent
placement revenue is recognized on the date the candidate’s full-time employment with the customer has commenced. The customer
is invoiced on the start date, and the contract stipulates payment due under varying terms, typically 30 days. The contract with the
customer stipulates a guarantee period whereby the customer may be refunded if the employee is terminated within a short period of time,
however this has historically been infrequent, and immaterial upon occurrence. As such, the Company’s performance obligations are
satisfied upon commencement of the employment, at which point control has transferred to the customer. Revenue for the quarter ended
April 2, 2022 was comprised of $48,329
of temporary contractor revenue and $1,564
permanent placement revenue, compared with
$47,918
and $1,033
for the quarter ended April 3, 2021,
respectively. Refer to Note 10 for further details on breakdown by segments.
Income
Taxes
The
Company’s provision for income taxes is based upon an estimated annual tax rate for the year applied to federal, state and foreign
income. On a quarterly basis, the annual effective tax rate is adjusted, as appropriate, based upon changed facts and circumstances,
if any, as compared with those forecasted at the beginning of the fiscal year and each interim period thereafter.
The
effective income tax rate was (0.25%)
and (2.20%)
for the quarters ending April 2, 2022
and April 3, 2021, respectively. The Company’s effective tax rate differs from the U.S. federal statutory rate of 21%,
primarily due to changes in valuation allowances in the U.S., which eliminates the effective tax rate on current year losses, offset
by current state taxes and changes to goodwill naked credit. The Company may have experienced an IRC Section 382 limitation during 2021,
for which it is in process of conducting an analysis to determine the tax consequences of such a limitation.
Foreign
Currency
The
Company recorded a non-cash foreign currency remeasurement (loss) gain of ($443)
and $128
for the quarters ended April 2, 2022 and April
3, 2021, respectively, associated with its U.S dollar denominated intercompany note.
Warrants
The
Company accounts for warrants as either equity-classified or liability-classified instruments based on an assessment of the warrant’s
specific terms and applicable authoritative guidance in Financial Accounting Standards Board (“FASB”) Accounting Standards
Codification (“ASC”) 480, Distinguishing Liabilities from Equity (“ASC 480”) and ASC 815, Derivatives and Hedging
(“ASC 815”). The assessment considers whether the warrants are freestanding financial instruments pursuant to ASC 480, meet
the definition of a liability pursuant to ASC 480, and whether the warrants meet all of the requirements for equity classification under
ASC 815, including whether the warrants are indexed to the Company’s own ordinary shares, among other conditions for equity classification.
This assessment, which requires the use of professional judgment, is conducted at the time of warrant issuance and as of each subsequent
quarterly period end date while the warrants are outstanding.
For
issued or modified warrants that meet all of the criteria for equity classification, the warrants are required to be recorded as a component
of additional paid-in capital at the time of issuance. For issued or modified warrants that do not meet all the criteria for equity classification,
the warrants are required to be recorded at their initial fair value on the date of issuance, and each balance sheet date thereafter.
Changes in the estimated fair value of the warrants are recognized as a non-cash gain or loss on the statements of operations. The fair
value of the warrants the Company has privately placed were estimated using a Black Scholes model. Refer to Note 8 for further
details.
Recent
Accounting Pronouncements
In
August 2020, the FASB issued ASU 2020-06, which simplifies the guidance on the issuer’s accounting for convertible debt instruments
by removing the separation models for (1) convertible debt with a cash conversion feature and (2) convertible instruments with a beneficial
conversion feature. As a result, entities will not separately present in equity an embedded conversion feature in such debt and will
account for a convertible debt instrument wholly as debt, unless certain other conditions are met. The elimination of these models will
reduce reported interest expense and increase reported net income for entities that have issued a convertible instrument that is within
the scope of ASU 2020-06. Also, ASU 2020-06 requires the application of the if-converted method for calculating diluted earnings per
share and treasury stock method will be no longer available. ASU 2020-06 is applicable for fiscal years beginning after December 15,
2021, with early adoption permitted no earlier than fiscal years beginning after December 15, 2020. The Company adopted this ASU
in this fiscal year. This standard did not have an impact on our financial statements.
NOTE
3 – EARNINGS (LOSS) PER COMMON SHARE
The
Company utilizes the guidance per ASC 260, “Earnings per Share”. Basic earnings per share are calculated by dividing income/loss
available to stockholders by the weighted average number of common stock shares outstanding during each period. Our Series A, Series
E and Series E-1 Preferred Stockholders (related parties) receive certain dividends or dividend equivalents that are considered participating
securities and our loss per share is computed using the two-class method. For the quarters ended April 2, 2022 and April 3, 2021,
pursuant to the two-class method, as a result of the net loss attributable to common stockholders, losses were not allocated to the
participating securities.
STAFFING
360 SOLUTIONS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(All
amounts in thousands, except share, per share and stated value per share)
(UNAUDITED)
Diluted
earnings per share are computed using the weighted average number of common stock shares and dilutive common stock equivalents
outstanding during the period. Dilutive common stock equivalents consist of shares of common stock issuable upon the conversion of
preferred stock, convertible notes, unvested equity awards and the exercise of stock options and warrants (calculated using the
modified treasury stock method). Such securities, shown below, presented on a common stock equivalent basis and outstanding as of
April 2, 2022 and April 3, 2021 have not been included in the diluted earnings per share computations, as their inclusion would be
anti-dilutive due to the Company’s net loss as of April 2, 2022 and April 3,2021:
SCHEDULE
OF COMMON SHARE EQUIVALENT BASIS AND OUTSTANDING EXCLUDED FROM PER SHARE COMPUTATIONS OF ANTI-DILUTIVE
| |
April 2, 2022 | | |
April 3, 2021 | |
Convertible preferred shares | |
| — | | |
| 127,300 | |
Warrants | |
| 972,495 | | |
| 54,285 | |
Restricted shares – unvested | |
| 6,880 | | |
| 5,300 | |
Options | |
| 51,302 | | |
| 1,302 | |
Total | |
| 1,030,677 | | |
| 188,187 | |
NOTE
4 – ACCOUNTS RECEIVABLE FINANCING
Midcap
Funding X Trust
Prior
to September 15, 2017, certain U.S. subsidiaries of the Company were parties to a $25,000 revolving loan facility with MidCap, with the
option to increase the amount by an additional $25,000, with a maturity of April 8, 2019.
On
October 26, 2020, the Company entered into Amendment No. 17 to Credit and Security Agreement with MidCap, whereby, among other things,
MidCap agreed to extend the maturity date of our outstanding asset based revolving loan until September 1, 2022. In addition, the Company
also agreed to certain amendments to the financial covenants.
The
facility provides events of default including: (i) failure to make payment of principal or interest on any MidCap loans when required,
(ii) failure to perform obligations under the facility and related documents, (iii) not paying its debts as such debts become due and
similar insolvency matters, and (iv) material adverse changes to the Company (subject to a 10-day notice and cure period.) Upon an event
of default, the Company’s obligations under the credit facility may, or in the event of insolvency or bankruptcy will automatically,
be accelerated. Upon the occurrence of any event of default, the facility will bear interest at a rate equal to the lesser of: (i) 3.0%
above the rate of interest applicable to such obligations immediately prior to the occurrence of the event of default; and (ii) the maximum
rate allowable under law.
Under
the terms of this agreement, the Company is subject to affirmative covenants which are customary for financings of this type, including
covenants to: (i) maintain good standing and governmental authorizations, (ii) provide certain information and notices to MidCap, (iii)
deliver monthly reports and quarterly financial statements to MidCap, (iv) maintain insurance, (v) discharge all taxes, (vi) protect
its intellectual property, and (vii) generally protect the collateral granted to MidCap. The Company is also subject to negative covenants
customary for financings of this type, including that it may not: (i) enter into a merger or consolidation or certain change of control
events, (ii) incur liens on the collateral, (iii) except for certain permitted acquisitions, acquire any significant assets other than
in the ordinary course of business, (iv) assume certain additional senior debt, or (v) amend any of its organizational documents. The
Company is not in compliance with its April 2, 2022 covenants and received a waiver from Midcap.
Subsequent to April 2, 2022, the Company is also not in compliance with its financial covenants with Midcap.
The
balance of the Midcap facility as of April 2, 2022 and January 1, 2022 was $13,063
and $13,405,
respectively, and is included in Accounts receivable
financing on the Consolidated Balance Sheet.
HSBC
Invoice Finance (UK) Ltd – New Facility
On
February 8, 2018, CBSbutler, Staffing 360 Solutions Limited and The JM Group, entered into a new arrangement with HSBC Invoice Finance
(UK) Ltd (“HSBC”) which provides for HSBC to purchase the subsidiaries’ accounts receivable up to an aggregate amount
of £11,500 across all three subsidiaries. The terms of the arrangement provide for HSBC to fund 90% of the purchased accounts receivable
upfront and, a secured borrowing line of 70% of unbilled receivables capped at £1,000 (within the overall aggregate total facility
of £11,500.) The arrangement has an initial term of 12 months, with an automatic rolling three-month extension and carries a service
charge of 1.80%.
On
June 28, 2018, CML, the Company’s new subsidiary entered into a new agreement with a minimum term of 12 months for purchase of
debt (“APD”) with HSBC, joining CBSbutler, Staffing 360 Solutions Limited and The JM Group (collectively, with CML, the “Borrowers”)
as “Connected Clients” as defined in the APD. The new Connected Client APDs carry an aggregate Facility Limit of £20,000
across all Borrowers. The obligations of the Borrowers are secured by a fixed charge and a floating charge on the Borrowers’ respective
accounts receivable and are subject to cross-company guarantees among the Borrowers. In addition, the secured borrowing line against
unbilled receivables was increased to £1,500 for a period of 90 days. In July 2019, the aggregate Facility Limit was extended to
£22,500 across all Borrowers.
Under
ASU 2016-16, “Statement of Cash Flows (Topic 230, Classification of Certain Cash Receipts and Cash Payments, a consensus of
the FASB Emerging Issues Task Force), the upfront portion of the sale of accounts receivable is classified within operating activities,
while the deferred purchase price portion (or beneficial interest), once collected, is classified within investing activities. For the quarters ended April 2, 2022 and April 3, 2021, the collection of UK factoring facility deferred purchase price totaled $1,877 and $1,741,
respectively
NOTE
5 – GOODWILL
The
following table provides a roll forward of goodwill:
SCHEDULE OF GOODWILL
| |
April 2, 2022 | | |
January 1, 2022 | |
Beginning balance, gross | |
$ | 23,828 | | |
$ | 31,591 | |
Accumulated disposition | |
| — | | |
| (1,577 | ) |
Accumulated impairment losses | |
| — | | |
| (6,073 | ) |
Currency translation adjustment | |
| (348 | ) | |
| (113 | ) |
Ending balance, net | |
$ | 23,480 | | |
$ | 23,828 | |
Goodwill
represents the excess of the purchase price over the fair value of net assets acquired in business combinations. ASC 350, requires that
goodwill be tested for impairment at the reporting unit level (operating segment or one level below an operating segment) on an annual
basis and between annual tests when circumstances indicate that the recoverability of the carrying amount of goodwill may be in doubt.
During the fourth quarter of 2021 the Company identified a triggering event in response the COVID-19 pandemic. In accordance
with ASC 350 the Company tested its goodwill for impairment and the Company recognized an impairment with respect to its Staffing
UK reporting unit of $3,104.
The impairment resulted from a continued decline in that reporting unit’s revenue which experienced significant and prolonged declines
as a result of the COVID-19 pandemic. To determine the impairment, the Company employed a combination of market approach (valuations
using comparable company multiples), income approach (discounted cash flow analysis) and prevailing market conditions to derive the fair
value of the reporting unit. Under ASU 2017-04, which the Company early adopted, the impairment amount represents the excess of the carrying
value over the fair value of the reporting unit.
NOTE
6 – DEBT
SCHEDULE
OF DEBT
| |
April 2, 2022 | | |
January 1, 2022 | |
Jackson Investment Group - related party | |
$ | 8,949 | | |
$ | 8,949 | |
HSBC Term Loan | |
| 670 | | |
| 809 | |
Total Debt, Gross | |
| 9,619 | | |
| 9,758 | |
Less: Debt Discount and Deferred Financing Costs, Net | |
| (175 | ) | |
| (256 | ) |
Total Debt, Net | |
| 9,444 | | |
| 9,502 | |
Less: Non-Current Portion | |
| (123 | ) | |
| (279 | ) |
Total Current Debt, Net | |
$ | 9,321 | | |
$ | 9,223 | |
Jackson
Debt
On
September 15, 2017, the Company entered into a $40,000 note agreement with Jackson (the “2017 Jackson Note”.) The proceeds
of the sale of the 2017 Jackson Note were used to repay the existing subordinated notes previously issued to Jackson pursuant to the
existing note purchase agreement in the aggregate principal amount of $11,165 and to fund a portion of the purchase price consideration
of the firstPRO Acquisition and the CBSbutler Acquisition and repay certain other outstanding indebtedness of the Company. The
maturity date for the amounts due under the 2017 Jackson Note was September 15, 2020. The 2017 Jackson Note will accrue interest at 12%
per annum, due quarterly on January 1, April 1, July 1 and October 1 in each year, with the first such payment due on January 1, 2018.
Interest on any overdue payment of principal or interest due under the 2017 Jackson Note will accrue at a rate per annum that is 5% in
excess of the rate of interest otherwise payable thereunder.
On
August 27, 2018, the Company entered into an amended agreement with Jackson, pursuant to which the note purchase agreement dated as of
September 15, 2017 was amended and made a new senior debt investment of approximately $8,428.
Terms of the additional investment were the same as the 2017 Jackson Note. From the proceeds of the additional investment, the Company
paid a closing fee of $280
and legal fees of $39
and issued 19,200
shares of the Company’s common stock
as a closing commitment fee.
On
August 29, 2019, the Company entered into a Fourth Omnibus Amendment and Reaffirmation Agreement with Jackson, as lender, which, among
other things, amends that certain Amended and Restated Note Purchase Agreement, dated as of September 15, 2017, as amended (the “Existing
Note Purchase Agreement”.) Pursuant to the Existing Note Purchase Agreement, the Company agreed to issue and sell to Jackson that
certain 18% Senior Secured Note due December 31, 2019 in the aggregate principal amount of $2,538 (the “2019 Jackson Note”.)
All accrued and unpaid interest on the outstanding principal balance of the 2019 Jackson Note was due and payable monthly on the first
day of each month, beginning on October 1, 2019. Pursuant to the terms of the 2019 Jackson Note, if the 2019 Jackson Note was not repaid
by December 31, 2019, the Company was required to issue 10,000 shares of its common stock to Jackson on a monthly basis until the 2019
Jackson Note is fully repaid, subject to certain exceptions to comply with Nasdaq listing standards. The Company booked additional expense
of $324 related to the issuances of 50,000 shares of common stock to Jackson in 2020. The Company paid the 2019 Jackson Note in full
on May 28, 2020.
On
October 26, 2020, the Company, certain of its subsidiaries and Jackson entered into the Amended Note Purchase Agreement and the 2020
Jackson Note, which amended and restated the Existing Note Purchase Agreement. The Amended Note Purchase Agreement refinanced an aggregate
of approximately $35,700 of debt provided by Jackson, extending the maturity to September 30, 2022. In connection with the amendment
and restatement, the Company paid Jackson an amendment fee of $488. The Company accounted for the Amended Note Purchase Agreement as
a modification of the debt. Accordingly, fees totaling $488 paid to Jackson as well as the modification of 15,092 warrants from a strike
price of $99.60 to $60.00 and the extension of the warrant expiration date of January 26, 2024 to January 26, 2026, resulting in a fair
value adjustment of $126, were recorded as additional debt discount which will be amortized over the term of the 2020 Jackson Note using
the effective interest method.
Under
the terms of the Amended Note Purchase Agreement and the 2020 Jackson Note, the
Company is required to pay interest on the debt at a per annum rate of 12%.
The interest is payable monthly in cash; provided that, the Company may elect to pay up to 50%
of monthly interest in-kind (“PIK Interest”) by adding such PIK Interest to the outstanding principal balance of the 2020
Jackson Note. For any month that the Company elects to pay interest in-kind, the Company is required to pay Jackson a fee in shares of
our common stock (“PIK Fee Shares”) in an amount equal to $25 divided by the average closing price, as reported by The Nasdaq
Capital Market (“Nasdaq”), of such shares of common stock over the 5 trading days prior to the applicable monthly interest
payment date. If such average market price is less than
$30.00
or is otherwise undeterminable because such shares
of common stock are no longer publicly traded or the closing price is no longer reported by Nasdaq, then the average closing price for
these purposes shall be deemed to be $30.000,
and if such average closing price is greater than $210.00,
then the average closing price for these purposes shall be deemed to be $210.00.
For
the period of November 2020 through and including March 2021, each monthly interest amount due and payable was reduced by $166, and for
the period commencing April 2021 through and including September 2021, each monthly interest amount due and payable was increased by
$166.
Under
the terms of the Amended Note Purchase Agreement, the Company was required to make a mandatory prepayment of the principal amount of
the 2020 Jackson Note of not less than $3,000 no later than January 31, 2021. Payments were made in December 2020 and January 2021 totaling
$3,029 in full satisfaction of the mandatory prepayment.
On
January 4, 2021, the Company used $1,558 in net proceeds from a securities purchase agreement dated December 30, 2020 and redeemed $1,168
of the 2020 Jackson Note with an outstanding principal amount of $33,878 and redeemed 390 shares of the Series E Convertible Preferred
Stock with an aggregate value of $390. Following the redemption of the portion of the 2020 Jackson Note and Series E Convertible Preferred
Stock, the 2020 Jackson Note balance was $32,710 and the Company had 10,690 shares of Series E Convertible Preferred Stock outstanding
with an aggregate stated value of $10,690.
On
February 5, 2021, the Company received the Limited Consent from Jackson, the sole holder of the Company’s outstanding shares of
Series E Convertible Preferred Stock, to use approximately (i) 75% of the net proceeds from the February 2021 Offering to redeem a portion
of the 2020 Jackson Note, which had an outstanding principal amount of $32,710 as of February 9, 2021, and (ii) 25% of the net proceeds
from the February 2021 Offering to redeem a portion of the Company’s Series E Convertible Preferred Stock. Pursuant to the Limited
Consent, upon closing of the February 2021 Offering, the Company paid $13,556 of the 2020 Jackson Note and redeemed 4,518 shares of the
Series E Convertible Preferred Stock.
On
April 21, 2021, the Company entered into the April 2021 Purchase Agreement. The net proceeds to the Company were approximately $4,200,
after deducting placement agent fees and estimate offering expenses payable by the Company. The Company used $3,200 of the net proceeds
to redeem a portion of the 2020 Jackson Note, which had an outstanding principal amount of $19,154 immediately prior to such redemption.
On
July 20, 2021, the Company entered into the July 2021 Purchase Agreement. As the Company’s Series G Preferred Stock (as defined
below) was outstanding, it was required to use the proceeds of any sales of equity securities, including the common stock offered in
the July 2021 Offerings, exclusively to redeem any outstanding shares of Series G Preferred Stock, subject to certain limitations. The
Company received a waiver from Jackson, the sole holder of the outstanding shares of its Series G Preferred Stock, to pay accrued and
unpaid interest and prepay a portion of the outstanding principal balance of the 2020 Jackson Note and paid accrued and unpaid dividends
on the Series G-1 Convertible Preferred Stock upon conversion of such preferred stock into the New Note (as defined below). The net proceeds
to the Company from the July 2021 Offerings were approximately $6,760, after deducting placement agent fees and estimated offering expenses
payable by the Company. The Company used $5,000 of the net proceeds to redeem a portion of the 2020 Jackson Note, which had an outstanding
principal amount of approximately $21,700 immediately prior to such redemption.
On
July 21, 2021, the Company entered into a non-cash financing transaction whereby it exchanged its outstanding 6,172 shares of Series
G Convertible Preferred Stock (“Series G Preferred Stock”) and 1,561 shares of Series G-1 Convertible Preferred Stock for
senior indebtedness by entering into a new 12% Senior Secured Note, in aggregate principal amount of $7,733 (the “New Note”),
which amount represented all of the outstanding Series G Preferred Stock, totaling $6,172, and Series G-1 Convertible Preferred Stock,
totaling $1,561, held by Jackson as of July 21, 2021, under the Amended Note Purchase Agreement. The New Note was deemed issued pursuant
to the Amended Note Purchase Agreement.
Under
the terms of the New Note, the Company is required to pay interest on the New Note at a per annum rate of 12%, in cash only, accruing
from and after the date of the New Note and until the entire principal balance of the New Note shall have been repaid in full, and on
and at all times during which the “Default Rate” (as defined in the Amended Note Purchase Agreement) applies, to the extent
permitted by law, at a per annum rate of 17%. The entire outstanding principal balance of the New Note is due and payable in full on
September 30, 2022. Upon an Event of Default (as defined in the Amended Note Purchase Agreement), the principal of the New Note and all
accrued and unpaid interest thereon may be accelerated and declared or otherwise become due and payable in accordance with the terms
of the Amended Note Purchase Agreement.
On
August 5, 2021, the Company entered into the First August 2021 Purchase Agreement. The net proceeds to the Company from the First August
2021 Offerings were approximately $3,217, after deducting placement agent fees and offering expenses payable by the Company. The Company
used a portion of the net proceeds from the First August 2021 Offerings together with other cash on hand to redeem $3,281 of the 2020
Jackson Note, which had an outstanding principal amount of approximately $16,730 immediately prior to such redemption.
On
October 28, 2021, the Company entered into a securities purchase agreement (the “November 2021 Private Placement”). This
placement closed on November 2, 2021 and was announced on November 3, 2021. The net proceeds of the November 2021 Private Placement were
approximately $9.25 million. The Company used a portion of the net proceeds from the November 2021 Private Placement to redeem $4,500
of the 2020 Jackson Note, which had an outstanding principal amount of approximately $13,449 immediately prior to such redemption.
The
entire outstanding principal balance of the 2020 Jackson Note shall be due and payable on September 30, 2022. The debt represented by
the 2020 Jackson Note continues to be secured by substantially all of the Company’s domestic subsidiaries’ assets pursuant
to the Amended and Restated Security Agreement with Jackson, dated September 15, 2017.
The
Amended Note Purchase Agreement includes certain customary financial covenants, including a leverage ratio covenant and a minimum adjusted
EBITDA covenant. Delivery of financial covenants commenced with the fiscal month ending March 2021. The Company is not in compliance
with its April 2, 2022 covenants and received a waiver from Jackson. Subsequent to April 2, 2022, the Company is also not in
compliance with its financial covenants with Jackson.
Debt
Exchange Agreement
On
November 15, 2018, the Company, entered into a Debt Exchange Agreement with Jackson, pursuant to which, among other things, Jackson
agreed to exchange $13,000
(the “Exchange Amount”) of indebtedness
of the Company held by Jackson in exchange for 13,000
shares of Series E Preferred Stock, par value
$0.00001
per share.
The
Series E Preferred Stock ranked senior to the Company’s common stock and any other series or classes of preferred stock issued
or outstanding with respect to dividend rights and rights on liquidation, winding up and dissolution. Each share of Series E Preferred
Stock was initially convertible into 561 shares of common stock of the Company at any time after October 31, 2020 or the occurrence of
a Preferred Default (as defined in the Certificate of Designation for the Series E Preferred Stock (the “Series E Certificate of
Designation”)). A holder of Series E Preferred Stock was not required to pay any additional consideration in exchange for conversion
of such Series E Preferred Stock into the Company’s common stock. Series E Preferred Stock was redeemable by the Company at any
time at a price per share equal to the stated value ($10,000 per share) plus all accrued and unpaid dividends thereon.
The
Series E Preferred Stock carried quarterly dividend rights of (a) cash dividends accruing (i) at an annual rate per share equal to 12%
from the date of issuance and (ii) 17% after the occurrence of a Preferred Default, and (b) a dividend payable in shares of Series E-1
Convertible Preferred Stock (the “Series E-1 Convertible Preferred Stock” and, collectively with the Series E Convertible
Preferred Stock, the “Series E Preferred Stock”). The shares of Series E-1 Convertible Preferred Stock had all the same terms,
preferences and characteristics as the Series E Preferred Stock (including, without limitation, the right to receive cash dividends),
except (i) Series E-1 Convertible Preferred Stock were mandatorily redeemable by the Company within thirty (30) days after written demand
received from any holder at any time after the earlier of the occurrence of a Preferred Default or November 15, 2020, for a cash payment
equal to the Liquidation Value (as defined in the Series E Certificate of Designation) plus any accrued and unpaid dividends thereon,
(ii) each share of Series E-1 Convertible Preferred Stock was initially convertible into 11 shares of the Company’s common
stock, and (iii) Series E-1 Convertible Preferred Stock could be cancelled and extinguished by the Company if all shares of Series E
Convertible Preferred Stock are redeemed by the Company on or prior to October 31, 2020.
On
October 26, 2020, in connection with the entry into the Amended Note Purchase Agreement, the Company filed with the Secretary of State
of the State of Delaware the second Certificate of Amendment (the “Amendment”) to the Series E Certificate of Designation.
Under the amended terms, holders of Series E Preferred Stock were entitled to monthly cash dividends on Series E Preferred Stock at a
per annum rate of 12%. At the Company’s option, up to 50% of the cash dividend on the Series E Convertible Preferred Stock could
be paid in kind by adding such 50% portion to the outstanding liquidation value of the Series E Convertible Preferred Stock (the “PIK
Dividend Payment”), commencing on October 26, 2020 and ending on October 25, 2020. If
the PIK Dividend Payment was elected, a holder of Series E Preferred Stock was entitled to additional fee to be paid in shares of our
common stock an amount equal to $10,000
divided by the average closing price, as reported
by Nasdaq of such shares of common stock over the 5 trading days prior to the applicable monthly interest payment date. If
such average market price was less than $35.00 or was otherwise undeterminable because such shares were no longer publicly traded
or the closing price was no longer reported by Nasdaq, then the average closing price for these purposes was to be deemed to be $35.00,
and if such average closing price were greater than $210.00 then the average closing price for these purposes would be deemed
to be $210.00. Dividends on the Series
E-1 Convertible Preferred Stock could only be paid in cash. If the Company failed to make dividend payments on the Series E Convertible
Preferred Stock, it would be an event of default under the Amended Note Purchase Agreement.
Under
the terms of the Amendment, shares of Series E-1 Convertible Preferred Stock were convertible into common stock at a conversion rate
equal to the liquidation value of each share of Series E-1 Convertible Preferred Stock divided by $60.00 per share commencing October
31, 2020. Each share of Series E-1 Convertible Preferred Stock had a liquidation value of $10,000 per share. The shares of Series E Convertible
Preferred Stock were also convertible into shares of common stock after October 31, 2022. The conversion rate for the Series E Convertible
Preferred Stock was equal to the liquidation value of each share of Series E Convertible Preferred Stock divided by $60.00 per share.
Each share of Series E Convertible Preferred Stock had a liquidation value of $10,000 per share. The Amendment resulted in the original
conversion price of $106.80 and $99.60 of the Series E Convertible Preferred Stock and E-1 Convertible Preferred Stock, respectively, being
reduced to $60.00 for both instruments.
The
Company accounted for the Amendment as a modification to the Series E and E-1 Preferred Stock. The change in fair value as a result of
the modification amounted to $410 and was recognized as a deemed dividend as of the fiscal year ended January 2, 2021. Further, the Company
recognized a beneficial conversion feature (BCF) of $4,280 as a result of the decrease in the conversion price to $60.00 in comparison
to the Company’s stock price on the date of the Amendment. The BCF was recognized as a deemed dividend. As the Company lacked retained
earnings at the time of determination, the deemed dividend was recorded as a reduction in additional paid-in capital resulting in a net
impact to additional paid-in capital of $0.
Under
the terms of the Consent and the Series E Certificate of Designation, in consideration for Jackson’s consent to the firstPRO
Transaction, the Initial Payment was used to redeem a portion of the Series E Preferred Stock, and the Escrow Funds, subject to the forgiveness
of PPP Loan, were agreed to be used to redeem a portion of the Series E Preferred Stock. As this provision results in a contingent redemption
feature, approximately $2,100 of the Series E Preferred Stock was reclassified to mezzanine equity during the year ended January 1, 2022.
On July 22, 2021, after conversion of the Series G Preferred Stock to the New Note, the Company redeemed $2,080 of the 2020 Jackson Note
using the Escrow Funds.
Lastly,
under the terms of the Limited Consent and Waiver with Jackson dated February 5, 2021, it was agreed that to the extent that any of the
PPP Loans are forgiven after the February 2021 Offering, Jackson may convert the Series E Convertible Preferred Stock and Series E-1
Convertible Preferred Stock that remains outstanding into a secured note that is substantially similar to the 2020 Jackson Note. As this
provision results in a contingent redemption feature, approximately $4,100 of the Series E Preferred Stock was reclassified to mezzanine
equity. The Company assessed the fair value of the instrument just before and after this modification and recorded a deemed dividend
totaling $389 upon remeasurement of the Series E Preferred Stock.
Jackson
Waivers
On
February 5, 2021, the Company entered into a Limited Consent and Waiver with Jackson whereby, among other things, Jackson
agreed that we may use 75% of the proceeds from the offering to redeem a portion of the 2020 Jackson Note, and 25% of the net
proceeds from the offering to redeem a portion of the Base Series E Preferred Stock notwithstanding certain provisions of the
certificate of designation for the Base Series E Preferred Stock that would have required the Company to use all the proceeds from
the offering to redeem the Base Series E Preferred Stock. In addition, the Company also agreed in the Limited Consent and Waiver to
additional limits on its ability to incur other indebtedness, including limits on advances under our revolving loan facility with
MidCap Funding X Trust. The Company also agreed that to the extent that any of our PPP Loans are forgiven after the offering,
Jackson may convert the Base Series E Preferred Stock and Series E-1 Preferred Stock that remains outstanding into a secured note
that is substantially similar to the 2020 Jackson Note. On April 8, 2021, the limited waiver was extended to June 17, 2021. On April
18, 2022, the limited waiver was extended to May 2, 2022. On June 23, 2022, the deadline for complying with the waiver was extended to June 30, 2022.
Series
G Preferred Stock – Related Party
On
May 6, 2021, the Company, entered into an Exchange Agreement with Jackson (the “Exchange Agreement”), pursuant to which,
among other things, Jackson agreed to exchange 6,172 shares of the Company’s Series E Convertible Preferred Stock and 1,493 shares
of the Series E-1 Preferred Stock for an equivalent number of shares of the Company’s newly issued Series G Convertible Preferred
Stock and Series G-1 Convertible Preferred Stock, respectively (collectively, the “Series G Preferred Stock” and the transaction,
the “Exchange”). The Series G Preferred Stock was subject to the same terms stated in the Limited Waiver, as defined herein
and described in Note 12.
The
Series G Preferred Stock ranked senior to each of the Company’s common stock, Series A Convertible Preferred Stock, Series B Convertible
Preferred Stock and Series C Convertible Preferred Stock, and any other classes and series of stock of the Company now or hereafter authorized,
issued or outstanding, which by their terms expressly provide that they are junior to the Series G Preferred Stock or which do not specify
their rank (which includes the Series F Convertible Preferred Stock). Each share of Series G Preferred Stock was initially convertible
into 1,000 shares of common stock at any time from and after, (i) with respect to the Series G Preferred Stock, the earlier of October
31, 2022 or the occurrence of a default and, (ii) with respect to the Series G-l Convertible Preferred Stock, October 31, 2020. A holder
of Series G Preferred Stock was not required to pay any additional consideration in exchange for conversion of the Series G Preferred
Stock into the Company’s common stock.
The
Series G Preferred Stock carried monthly dividend rights of (a) cash dividends accruing (i) at an annual rate per share equal to 12%
from the date of issuance (plus any accrued dividends with respect to the Series E Preferred Stock unpaid as of the date of the Exchange)
and (ii) 17% after the occurrence of a default, and (b) a dividend payable in shares of Series G-1 Convertible Preferred Stock. The shares
of Series G-1 Convertible Preferred Stock had all the same terms, preferences and characteristics as the Series G Preferred Stock (including,
without limitation, the right to receive cash dividends), except Series G-1 Convertible Preferred Stock were mandatorily redeemable by
the Company within thirty (30) days after written demand received from any holder at any time after the earlier of the occurrence of
a Preferred Default or September 30, 2022, for a cash payment equal to the liquidation value plus any accrued and unpaid dividends thereon.
On
July 20, 2021, the Company entered into the July 2021 Purchase Agreement. As the Company’s Series G Preferred Stock was outstanding,
it was required to use the proceeds of any sales of equity securities, including the common stock offered in the July 2021 Registered
Direct Offering, exclusively to redeem any outstanding shares of Series G Preferred Stock, subject to certain limitations. The Company
received a waiver from Jackson, the sole holder of the outstanding shares of its Series G Preferred Stock, to pay accrued and unpaid
interest and prepay a portion of the outstanding principal balance of the 2020 Jackson Note, and paid accrued and unpaid dividends on
the Series G-1 Convertible Preferred Stock upon conversion of such preferred stock into the New Note. While under the terms of the Certificate
of Designation governing the Series G Preferred Stock and Series G-1 Preferred Stock, 6,172,000 shares and 1,561,000 shares of common
stock were issuable upon the conversion of Series G Preferred Stock and Series G-1 Preferred Stock, respectively, the shares of Series
G Preferred Stock and Series G-1 Convertible Preferred Stock were not converted to common stock and instead were converted on July 21,
2021 to debt. The terms of this note match the terms of the Amended Note Purchase Agreement from October 26, 2020.
As
of April 2, 2022, there were no shares of Series G or Series G-1 Convertible Preferred Stock outstanding.
HSBC
Loan
On
February 8, 2018, CBS Butler Holdings Limited (“CBS Butler”), Staffing 360 Solutions Limited and The JM Group, entered into
a new arrangement with HSBC Invoice Finance (UK) Ltd (“HSBC”) which provides for HSBC to purchase the subsidiaries’
accounts receivable up to an aggregate amount of £11,500 across all three subsidiaries. The terms of the arrangement provide for
HSBC to fund 90% of the purchased accounts receivable upfront and, a secured borrowing line of 70% of unbilled receivables capped at
£1,000 (within the overall aggregate total facility of £11,500). The arrangement has an initial term of 12 months, with an
automatic rolling three-month extension and carries a service charge of 1.80%. Under ASU 2016-16, “Statement of Cash Flows (Topic
230, Classification of Certain Cash Receipts and Cash Payments, a consensus of the FASB Emerging Issues Task Force), the upfront
portion of the sale of accounts receivable is classified within operating activities, while the deferred purchase price portion (or beneficial
interest), once collected, is classified within investing activities.
On April 20, 2020, the terms of the loan with HSBC were amended such that no capital repayments would be required between April 2020
to September 2020, and only interest payments would be made during such time. Since such time, capital repayments have resumed. On May
15, 2020, the Company entered into a three-year
term loan with HSBC in the UK for £1,000.
NOTE
7 – LEASES
As
of April 2, 2022 and January 1, 2022, as a result of the adoption of ASC 842, we recorded a right of use (“ROU”) lease asset
of approximately $5,237
with a corresponding lease liability of approximately
$5,333
and ROU of approximately $5,578
with a corresponding lease liability of approximately
$5,574,
respectively, based on the present value of the
minimum rental payments of such leases. The Company’s finance leases are immaterial both individually and in the aggregate.
In
September 2021, the Company entered into a new lease agreement for an office lease in New York for a term of 8 years. This resulted in
increases to right of use assets and lease liabilities of $2,735.
Quantitative
information regarding the Company’s leases for period ended April 2, 2022 is as follows:
SCHEDULE OF LEASE, COST
Lease Cost | |
Classification | |
APRIL
2, 2022 | |
Operating lease cost | |
SG&A Expenses | |
| 421 | |
Other information | |
| |
| | |
Weighted average remaining lease term (years) | |
| |
| 3.93 | |
Weighted average discount rate | |
| |
| 6.70 | % |
SCHEDULE OF OPERATING LEASE LIABILITY MATURITY
Future Lease Payments | |
|
|
2022 | |
$ | 795 |
|
2023 | |
| 1,129 |
|
2024 | |
| 942 |
|
2025 | |
| 834 |
|
2026 | |
| 834 |
|
Thereafter | |
| 2,100 |
|
Total | |
$ | 6,634 |
|
Less: Imputed Interest | |
| 1,301 |
|
Operating
lease, liability | |
$ | 5,333 |
|
| |
| |
|
Leases - Current | |
$ | 879 |
|
Leases - Non current | |
$ | 4,454 |
|
As
most of the Company’s leases do not provide an implicit rate, we use the Company’s incremental borrowing rate based on the
information available at commencement date in determining the present value of lease payments. This methodology was deemed to yield a
measurement of the Right of Use Asset and associated lease liability that was appropriately stated in all material respects.
NOTE
8 – STOCKHOLDERS’ EQUITY
The
Company issued the following shares of common stock during the quarter ended April 2, 2022:
SCHEDULE
OF STOCKHOLDERS EQUITY
| |
Number of Common | | |
Fair Value | | |
Fair Value at Issuance |
| |
Shares | | |
of Shares | | |
(minimum and maximum |
Shares issued to/for: | |
Issued | | |
Issued | | |
per share) |
Board and committee members | |
| 1,000 | | |
| 42 | | |
9.70 | |
| 9.70 | |
| |
| 1,000 | | |
$ | 42 | | |
| |
| | |
The
Company issued the following shares of common stock during the quarter ended April 3, 2021:
| |
Number of Common | | |
Fair Value | | |
Fair Value at Issuance | |
| |
Shares | | |
of Shares | | |
(minimum and maximum | |
Shares issued to/for: | |
Issued | | |
Issued | | |
per share) | |
Equity raise | |
| 364,255 | | |
$ | 19,670 | | |
$ | 36.00 | | |
$ | 36.00 | |
Conversion of Series A | |
| 451 | | |
| — | | |
| - | | |
| — | |
Employees | |
| 5,084 | | |
| 275 | | |
| 36.00 | | |
| 36.00 | |
Long Term Incentive Plan | |
| 2,582 | | |
| 316 | | |
| 82.20 | | |
| 143.40 | |
Board and committee members | |
| 94 | | |
| 5 | | |
| 51.60 | | |
| 51.60 | |
| |
| 372,466 | | |
$ | 20,266 | | |
| | | |
| | |
Reverse Stock Split
The Company
effected a one-for-ten reverse stock split on June 24, 2022 (the “Reverse Stock Split”). All share and per share information
in this quarterly report have been retroactively adjusted to reflect the Reverse Stock Splits.
Increase
of Authorized Common Stock
On
December 27, 2021, the Company’s stockholders approved an amendment to the Amended and Restated Certificate of Incorporation of
the Company to effect an increase to its number of shares of authorized common stock, par value $0.00001 from 40,000,000 to 200,000,000.
Series A Preferred
Stock – Related Party
As of April 2, 2022 and April 3, 2021, the Company had $125 and $125 of dividends payable to the Series A Preferred Stockholder, respectively.
Restricted
Shares
The
Company has issued shares of restricted stock to employees and members of the Board under its 2015 Omnibus Incentive Plan, 2016 Omnibus
Incentive Plan, 2020 Omnibus Plan and 2021 Omnibus Inventive Plan. Under these plans, the shares are restricted for a period of three
years from issuance. As of Fiscal 2021, the Company has issued a total of 1,000 restricted shares of common stock to employees and
Board members that remain restricted. In accordance with ASC 718, Compensation – Stock Compensation, the Company recognizes stock-based
compensation from restricted stock based upon the fair value of the award at issuance over the vesting term on a straight-line basis.
The fair value of the award is calculated by multiplying the number of restricted shares by the Company’s stock price on the date
of issuance. The impact of forfeitures has historically been immaterial to the financial statements. In Fiscal 2021 and 2020, the Company
recorded compensation expense associated with these restricted shares of $374 and $539, respectively. The table below is a rollforward
of unvested restricted shares issued to employees and board of directors.
SCHEDULE
OF UNVESTED RESTRICTED SHARES ACTIVITY
| |
| | |
Weighted | |
| |
Restricted | | |
Average | |
| |
Shares | | |
Price Per Share | |
Balance at January 2, 2021 | |
| 1,030 | | |
$ | 75.00 | |
Granted | |
| 19,115 | | |
| 29.20 | |
Vested/adjustments | |
| (14,198 | ) | |
| 29.00 | |
Balance at January 1, 2022 | |
| 5,947 | | |
$ | 50.00 | |
Granted | |
| 1,000 | | |
| 9.70 | |
Vested/adjustments | |
| (67 | ) | |
| 107.40 | |
Balance at April 2, 2022 | |
| 6,880 | | |
| 5.71 | |
Warrants
Transactions
involving the Company’s warrant issuances are summarized as follows:
SCHEDULE
OF WARRANTS ACTIVITY
| |
| | |
Weighted | |
| |
Number of | | |
Average | |
| |
Shares | | |
Exercise Price | |
Outstanding at January 2, 2021 | |
| 26,285 | | |
$ | 59.40 | |
Issued | |
| 995,452 | | |
| 25.90 | |
Exercised | |
| (49,242 | ) | |
| 0.0001 | |
Expired or cancelled | |
| — | | |
| — | |
Outstanding at January 1, 2022 | |
| 972,495 | | |
$ | 25.84 | |
Issued | |
| — | | |
| — | |
Exercised | |
| — | | |
| — | |
Expired or cancelled | |
| — | | |
| — | |
Outstanding at April 2, 2022 | |
| 972,495 | | |
| 25.84 | |
The
following table summarizes warrants outstanding as of April 2, 2022:
SCHEDULE
OF STOCKHOLDERS' EQUITY NOTE, WARRANTS OR RIGHTS
|
|
|
|
|
|
Weighted
Average |
|
|
|
|
|
|
|
Number |
|
|
Remaining |
|
|
Weighted |
|
|
|
|
Outstanding |
|
|
Contractual |
|
|
Average |
|
Exercise
Price |
|
|
and
Exercisable |
|
|
Life
(years) |
|
|
Exercise
price |
|
$ |
18.50
- $3,750 |
|
|
|
972,495 |
|
|
|
4.23 |
|
|
$ |
25.84 |
|
Stock
Options
A
summary of option activity during the quarter ended April 2, 2022 is presented below:
SCHEDULE
OF SHARE-BASED COMPENSATION, STOCK OPTIONS, ACTIVITY
| |
| | |
Weighted | |
| |
| | |
Average | |
| |
Options | | |
Exercise Price | |
Outstanding at January 2, 2021 | |
| 1,302 | | |
$ | 1,665.60 | |
Granted | |
| — | | |
| — | |
Exercised | |
| — | | |
| — | |
Expired or cancelled | |
| — | | |
| — | |
Outstanding at January 1, 2022 | |
| 1,302 | | |
$ | 1,665.60 | |
Granted | |
| 50,000 | | |
| 7.80 | |
Exercised | |
| — | | |
| — | |
Expired or cancelled | |
| — | | |
| — | |
Outstanding at April 2, 2022 | |
| 51,302 | | |
$ | 50.06 | |
The
Company recorded share-based payment expense of $21
and $7
for the quarters
ended April 2, 2022 and April 3, 2021, respectively.
NOTE
9 – COMMITMENTS AND CONTINGENCIES
Legal
Proceedings
Whitaker
v. Monroe Staffing Services, LLC & Staffing 360 Solutions, Inc.
On
December 5, 2019, former owner of Key Resources, Inc. (“KRI”), Pamela D. Whitaker (“Whitaker” or “Plaintiff”),
filed a complaint in Guilford County, North Carolina (the “North Carolina Action”) asserting claims for breach of contract
and declaratory judgment against Monroe Staffing Services LLC (“Monroe”) and the Company (collectively, the “Defendants”)
arising out of the alleged non-payment of certain earn-out payments and interest purportedly due under a Share Purchase Agreement pursuant
to which Whitaker sold all issued and outstanding shares in her staffing agency, KRI, to Monroe in August 2018. Whitaker sought $4,054
in alleged damages.
Defendants
removed the action to the Middle District of North Carolina on January 7, 2020, and Plaintiff moved to remand on February 4, 2020. Briefing
on the motion to remand concluded on February 24, 2020. Separately, Defendants moved to dismiss the action on January 14, 2020 based
on Plaintiff’s failure to state a claim, improper venue, and lack of personal jurisdiction as to defendant Staffing 360 Solutions,
Inc. Alternatively, Defendants sought a transfer of the action to the Southern District of New York, based on the plain language of the
Share Purchase Agreement’s forum selection clause. Briefing on Defendants’ motion to dismiss concluded on February 18, 2020.
On February 28, 2020, Plaintiff moved for leave to file an amended complaint. Defendants filed their opposition to the motion for leave
on March 19, 2020. Plaintiff has filed a reply.
On
June 29, 2020, Magistrate Judge Webster issued a Report and Recommendation on the pending motions, recommending that Defendants’
motion to dismiss be granted with regard to Defendants’ request to transfer the matter to the Southern District of New York, and
denied in all other regards without prejudice to Defendants raising those arguments again in the new forum. Magistrate Judge Webster
also recommended that Plaintiff’s motion to remand be denied and motion to amend be left to the discretion of the Southern District
of New York.
Plaintiff
filed an objection to the Report and Recommendation on July 9, 2020. Defendants responded on July 23, 2020. On February 19, 2021, the
District Court issued a decision that reversed the Magistrate Judge’s Order. The District Court granted Plaintiff’s motion
to remand and denied Defendants’ motion to dismiss as moot. Defendants filed a Notice of Appeal to the Fourth Circuit on February
25, 2021 and filed their opening brief on April 21, 2021. Plaintiff filed her response brief on May 21, 2021, and Defendants replied
on June 11, 2021. Oral argument was held on March 9, 2022. As of the date of this filing, a decision is pending.
Separately,
on February 26, 2020, the Company and Monroe filed an action against Whitaker in the United States District Court for the Southern District
of New York (Case No. 1:20-cv-01716) (the “New York Action”.) The New York Action concerns claims for breach of contract
and fraudulent inducement arising from various misrepresentations made by Whitaker to the Company and Monroe in advance of, and included
in, the share purchase agreement. The Company and Monroe are seeking damages in an amount to be determined at trial but in no event less
than $6,000. On April 28, 2020, Whitaker filed a motion to dismiss the New York Action on both procedural and substantive grounds. On
June 11, 2020, Monroe and the Company filed their opposition to Whitaker’s motion to dismiss. On July 9, 2020 Whitaker filed reply
papers in further support of the motion.
On
October 13, 2020, the Court denied Whitaker’s motion to dismiss, in part, and granted the motion, in part. The Court rejected Whitaker’s
procedural arguments but granted the motion on substantive grounds. However, the Court ordered that Monroe and the Company may seek leave
to amend the complaint by letter application by December 1, 2020. Monroe and the Company filed a letter of motion for leave to amend
and a proposed Amended Complaint on December 1, 2020. On January 5, 2021, Whitaker filed an opposition to the letter motion. On January
25, 2021, Monroe and the Company filed a reply in further support of the letter motion. On March 9, 2021, the Court granted Monroe and
the Company’s motion for leave to amend, in part, and denied the motion, in part. The Court rejected Monroe and the Company’s
claim for fraudulent inducement but granted the motion for leave to amend their breach of contract claim. Monroe and the Company filed
their amended complaint on March 12, 2021. On April 9, 2021, Whitaker renewed her motion to dismiss on procedural grounds, requesting
dismissal of the action or, in the alternative, a stay of the proceeding pending adjudication on the merits of the North Carolina Action.
On May 14, 2021, Monroe and the Company filed an opposition to the motion to dismiss. On June 21, 2021, Whitaker filed a reply in further
support of the motion. The Court referred the case to Magistrate Judge Moses, who held oral argument on the motion on November 9, 2021.
Whitaker’s renewed motion to dismiss remains pending.
Monroe
and the Company intend to pursue their claims vigorously.
As
of the date of this filing, we are not aware of any other material legal proceedings to which we or any of our subsidiaries is a party
or to which any of our property is subject, other than as disclosed above.
NOTE
10 – SEGMENT INFORMATION
The
Company generated revenue and gross profit by segment as follows:
SCHEDULE
OF SEGMENT REPORTING INFORMATION, BY SEGMENT
| |
QUARTERS ENDED | |
| |
APRIL
2, 2022 | | |
APRIL
3, 2021 | |
Commercial Staffing – US | |
$ | 28,609 | | |
$ | 30,121 | |
Professional Staffing – US | |
| 4,329 | | |
| 3,771 | |
Professional Staffing – UK | |
| 16,955 | | |
| 15,059 | |
Total Revenue | |
$ | 49,893 | | |
$ | 48,951 | |
| |
| | | |
| | |
Commercial Staffing – US | |
$ | 4,719 | | |
$ | 4,838 | |
Professional Staffing – US | |
| 1,204 | | |
| 954 | |
Professional Staffing – UK | |
| 2,590 | | |
| 2,223 | |
Total Gross Profit | |
$ | 8,513 | | |
$ | 8,015 | |
| |
| | | |
| | |
Selling, general and administrative expenses | |
$ | (8,909 | ) | |
$ | (7,929 | ) |
Depreciation and amortization | |
| (655 | ) | |
| (731 | ) |
Interest expense and amortization of debt discount and deferred financing costs | |
| (766 | ) | |
| (1,241 | ) |
Re-measurement gain (loss) on intercompany note | |
| (443 | ) | |
| 128 | |
Other (expense) income | |
| (58 | ) | |
| 107 | |
STAFFING
360 SOLUTIONS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(All
amounts in thousands, except share, per share and stated value per share)
(UNAUDITED)
The
following table disaggregates revenues by segments:
| |
QUARTER ENDED APRIL 2,
2022 | | |
| |
| |
Commercial Staffing – US | | |
Professional Staffing - US | | |
Professional Staffing - UK | | |
Total | |
Permanent Revenue | |
$ | 113 | | |
$ | 380 | | |
$ | 1,071 | | |
$ | 1,564 | |
Temporary Revenue | |
| 28,496 | | |
| 3,949 | | |
| 15,884 | | |
| 48,329 | |
Total | |
$ | 28,609 | | |
$ | 4,329 | | |
$ | 16,955 | | |
$ | 49,893 | |
| |
QUARTER ENDED APRIL 3,
2021 | | |
| |
| |
Commercial Staffing – US | | |
Professional Staffing - US | | |
Professional Staffing - UK | | |
Total | |
Permanent Revenue | |
$ | 41 | | |
$ | 257 | | |
$ | 735 | | |
$ | 1,033 | |
Temporary Revenue | |
| 30,080 | | |
| 3,514 | | |
| 14,324 | | |
| 47,918 | |
Total | |
$ | 30,121 | | |
$ | 3,771 | | |
$ | 15,059 | | |
$ | 48,951 | |
As
of April 2, 2022 and January 1, 2022, the Company has assets in the U.S. and the U.K. as follows:
| |
April 2, 2022 | | |
January 1, 2022 | |
United States | |
$ | 72,186 | | |
$ | 72,125 | |
United Kingdom | |
| 564 | | |
| 1,565 | |
Total Assets | |
$ | 72,750 | | |
$ | 73,690 | |
NOTE
11 – RELATED PARTY TRANSACTIONS
In
addition to the Series A Preferred Shares and notes and warrants issued to Jackson, the following are other related party transactions:
Board
and Committee Members
SCHEDULE
OF RELATED PARTY TRANSACTIONS
| |
QUARTER ENDED APRIL 2, 2022 | |
| |
Cash Compensation | | |
Shares Issued | | |
Value of Shares Issued | | |
Compensation Expense Recognized | |
Dimitri Villard | |
$ | 25 | | |
| 2,000 | | |
$ | 2 | | |
$ | — | |
Jeff Grout | |
| 25 | | |
| 2,000 | | |
| 2 | | |
| — | |
Nick Florio | |
| 25 | | |
| 2,000 | | |
| 2 | | |
| — | |
Vincent Cebula | |
| 25 | | |
| 2,000 | | |
| 2 | | |
| — | |
Alicia Barker | |
| - | | |
| 2,000 | | |
| 2 | | |
| — | |
| |
$ | 100 | | |
| 10,000 | | |
$ | 10 | | |
$ | — | |
| |
QUARTER ENDED APRIL 3, 2021 | |
| |
Cash Compensation | | |
Shares Issued | | |
Value of Shares Issued | | |
Compensation Expense Recognized | |
Dimitri Villard | |
$ | 19 | | |
| 234 | | |
$ | 1 | | |
$ | 2 | |
Jeff Grout | |
| 19 | | |
| 234 | | |
| 1 | | |
| 2 | |
Nick Florio | |
| 19 | | |
| 234 | | |
| 1 | | |
| 2 | |
Alicia Barker | |
| - | | |
| 234 | | |
| 1 | | |
| 2 | |
| |
$ | 57 | | |
| 936 | | |
$ | 4 | | |
$ | 8 | |
NOTE
12 – SUPPLEMENTAL CASH FLOW INFORMATION
SCHEDULE
OF CASH FLOW, SUPPLEMENTAL DISCLOSURES
| |
QUARTER ENDED | |
| |
April
2, 2022 | | |
April
3, 2021 | |
Cash paid for: | |
| | | |
| | |
Interest | |
$ | 766 | | |
$ | 775 | |
Income taxes | |
| — | | |
| — | |
| |
| | | |
| | |
Non-Cash Investing and Financing Activities: | |
| | | |
| | |
Deferred purchase price of UK factoring facility | |
$ | 1,835 | | |
$ | 1,612 | |
Dividends accrued to related parties | |
| — | | |
| 389 | |
Deemed dividend | |
| — | | |
| 389 | |
NOTE
13 – SUBSEQUENT EVENTS
On
June 23, 2022, the Company filed a Certificate of Amendment of Amended and Restated Certificate of Incorporation (the “Certificate
of Amendment”) with the Secretary of State of Delaware to effect a 1-for-10 reverse stock split of the shares of the Company’s
common stock, par value $0.00001 per share, either issued and outstanding or held by the Company as treasury stock, effective as of 4:05 p.m.
(Delaware time) on June 23, 2022 (the “Reverse Stock Split”). The Company held a special meeting of stockholders on June
23, 2022 (the “Special Meeting”), at which meeting the Company’s stockholders, approved the amendment to the Company’s
Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to effect a reverse stock split of
the Company’s common stock at a ratio in the range of 1-for-2 to 1-for-20, with such ratio to be determined by the Company’s
board of directors (the “Board”) and included in a public announcement. Following the Special Meeting, the Board determined
to effect the Reverse Stock Split at a ratio of 1-for-10 and approved the corresponding final form of the Certificate of Amendment.
On
April 18, 2022, the Company entered into a Stock Purchase Agreement with Headway Workforce Solutions (“Headway”), and Chapel
Hill Partners, LP, as the representatives of all the stockholders (collectively, the “Sellers”) of Headway (the “Sellers’
Representative”), pursuant to which, among other things, the Company agreed to purchase all of the issued and outstanding securities
of Headway in exchange for (i) a cash payment of $14, and (ii) 9,000,000 shares of our Series H Convertible Preferred Stock,
with a value equal to the Closing Payment, as defined in the Stock Purchase Agreement (the “Headway Acquisition”). On May
18, 2022, the Headway Acquisition closed. The purchase price in connection with the Headway Acquisition was approximately $9,000. Pursuant
to the Stock Purchase Agreement and in connection with the closing of the Headway Acquisition, on May 17, 2022, the Company filed a certificate
of designation (the “Certificate of Designation”) with the Secretary of State of Delaware designating the rights, preferences
and limitations of the Series H Convertible Preferred Stock, par value $0.00001 per share (the “Series H Preferred Stock”).
The
purchase price in connection with the Headway Acquisition was $9,000, subject to adjustment as provided in the Stock Purchase Agreement.
Pursuant to certain covenants in the Stock Purchase Agreement, the Company may be subject to a Contingent Payment of up to $5,000 based
on the Adjusted EBITDA (such term as defined in the Stock Purchase Agreement) of Headway during the Contingent Period (such term as defined
in the Stock Purchase Agreement).
The
Stock Purchase Agreement also contains representations, warranties and indemnification obligations of the parties customary for transactions
similar to those contemplated by the Stock Purchase Agreement. Such representations and warranties are made solely for purposes of the
Stock Purchase Agreement and, in some cases, may be subject to qualifications and limitations agreed to by the parties in connection
with the negotiated terms of the Stock Purchase Agreement and may have been qualified by disclosures that were made in connection with
the parties’ entry into the Stock Purchase Agreement.
In
connection with the Headway Acquisition, the Sellers’ Representative and certain of the Sellers entered into voting agreements
whereby each will agree to, at every meeting of our stockholders, and at every adjournment or postponement thereof, to appear or issue
a proxy to a third party to be present for purposes of establishing a quorum, and to vote all applicable shares in favor of each matter
proposed and recommended for approval by the Company’s board of directors either in person or by proxy, amongst other provisions.
On
May 3, 2022, the Board declared a dividend of one one-thousandth (1/1,000th) of a share of Series J Preferred Stock for each outstanding
share of Common Stock to stockholders of record of Common Stock as of 5:00 p.m. Eastern Time on May 13, 2022. The holders of Series J
Preferred Stock have 1,000,000 votes per whole share of Series J Preferred Stock (i.e., 1,000 votes per one one-thousandth of a share
of Series J Preferred Stock) and are entitled to vote with the Common Stock, together as a single class, on the Reverse Stock Split Proposal
and Adjournment Proposal, but are not otherwise entitled to vote on the other proposals, if any, to be presented at the Special Meeting.
All shares of Series J Preferred Stock that are not present in person or by proxy at any meeting of stockholders held to vote on the
Reverse Stock Split and the Adjournment Proposal as of immediately prior to the opening of the polls at such meeting (the “Initial
Redemption Time”) will automatically be redeemed in whole, but not in part, by the Company at the Initial Redemption Time without
further action on the part of the Company or the holder of shares of Series J Preferred Stock (the “Initial Redemption”). Notwithstanding
the foregoing, each share of Series J Preferred Stock redeemed pursuant to the Initial Redemption will have no voting power with respect
to the Reverse Stock Split, the Adjournment Proposal or any other matter. When a holder of Common Stock submits a vote on the Reverse
Stock Split Proposal and the Adjournment Proposal, the corresponding number of shares of Series J Preferred Stock (or fraction thereof)
held by such holder will be automatically cast in the same manner as the vote of the share of Common Stock (or fraction thereof) in respect
of which such share of Series J Preferred Stock (or fraction thereof) was issued as a dividend is cast on the Reverse Stock Split, the
Adjournment Proposal or such other matter, as applicable, and the proxy or ballot with respect to shares of Common Stock held by any
holder on whose behalf such proxy or ballot is submitted will be deemed to include all shares of Series J Preferred Stock (or fraction
thereof) held by such holder. Holders of Series J Preferred Stock will not receive a separate ballot or proxy to cast votes with respect
to the Series J Preferred Stock on the Reverse Stock Split, the Adjournment Proposal or any other matter brought before the Special Meeting.
For example, if a stockholder holds 10 shares of Common Stock (entitled to one vote per share) and votes in favor of the Reverse Stock
Split Proposal, then 10,010 votes will be recorded in favor of the Reverse Stock Split Proposal, because the stockholder’s shares
of Series J Preferred Stock will automatically be voted in favor of the Reverse Stock Split Proposal alongside such stockholder’s
shares of Common Stock.
On July 1, 2022, the Company entered into a securities
purchase agreement with certain institutional and accredited investors for the issuance and sale of a private placement of 657,858 shares
of common stock or pre-funded warrants to purchase shares of common stock, and warrants (the “July 2022 Warrants”)
to purchase up to 657,858 shares of common stock, with an exercise price of $5.85 per share. The Warrants are exercisable immediately
upon issuance and have a term of exercise equal to five and one-half years from the date of issuance. The combined purchase price for
one Common Share (or pre-funded warrant) and one associated warrant to purchase one share of common stock was $6.10.
In
connection with the private placement, each investor entered into a warrant amendment agreement with the Company (collectively, the “Warrant
Amendment Agreements”) to amend the exercise prices of certain existing warrants to purchase up to an aggregate of 657,858
shares of common stock of the Company
that were previously issued to the investors, with exercise prices ranging from $18.50
to $38.00
per share and expiration
dates ranging from July 22, 2026 to November 1, 2026.
The Warrant Amendment Agreements became effective upon the closing of the private placement and pursuant to the Warrant Amendment Agreements,
the amended warrants have a reduced exercise price of $5.85
per share and expire five and one-half
years following the closing of the private placement. H.C. Wainwright & Co., LLC (“HCW”)
acted as the Company’s exclusive placement agent in connection with the private placement, pursuant to that engagement letter,
dated as of June 28, 2022, between the Company and HCW. The Company paid HCW (i) a total cash fee equal to 7.5% of the aggregate gross
proceeds of the private placement, (ii) a management fee of 1.0% of the aggregate gross proceeds of the private placement, or $40,129.34,
and (iii) a non-accountable expense allowance of $85,000. In addition, the Company issued to HCW warrants to purchase up to 49,339 shares
of common stock at an exercise price equal to $7.625. The warrants are exercisable immediately upon issuance and have a term of exercise
equal to five and one-half years from the date of issuance.
The Company intends to use the net proceeds received
from the private placement for general working capital purposes.