UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the quarterly period ended November 30, 2020
OR
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the transition period from to
Commission file number 0-50761
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |||||||
(Address of principal executive offices and zip code)
(518 ) 795-1400
Registrant’s telephone number, including area code
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading symbol | Name of each exchange on which registered | ||||||||||||
Securities registered pursuant to Section 12(g) of the Act:
None
(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 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 preceding 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 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 or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☐ | ☒ | ||||||||||||||||||
| Non-accelerated filer | ☐ | Smaller reporting company | ||||||||||||||||||
| Emerging growth company | ||||||||||||||||||||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
Indicate the number of shares outstanding of each of the Issuer’s classes of common stock, as of the latest practicable date.
| Class | Outstanding as of January 6, 2021 | |||||||
| Common Stock, par value $.01 | ||||||||
AngioDynamics, Inc. and Subsidiaries
TABLE OF CONTENTS
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2
PART 1. FINANCIAL INFORMATION
Item 1. Financial Statements.
AngioDynamics, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
(in thousands of dollars, except per share data)
| Three Months Ended | Six Months Ended | |||||||||||||||||||||||||
| Nov 30, 2020 | Nov 30, 2019 | Nov 30, 2020 | Nov 30, 2019 | |||||||||||||||||||||||
| Net sales | $ | $ | $ | $ | ||||||||||||||||||||||
| Cost of sales (exclusive of intangible amortization) | ||||||||||||||||||||||||||
| Gross profit | ||||||||||||||||||||||||||
| Operating expenses: | ||||||||||||||||||||||||||
| Research and development | ||||||||||||||||||||||||||
| Sales and marketing | ||||||||||||||||||||||||||
| General and administrative | ||||||||||||||||||||||||||
| Amortization of intangibles | ||||||||||||||||||||||||||
| Change in fair value of contingent consideration | ( | ( | ||||||||||||||||||||||||
| Acquisition, restructuring and other items, net | ||||||||||||||||||||||||||
| Total operating expenses | ||||||||||||||||||||||||||
| Operating loss | ( | ( | ( | ( | ||||||||||||||||||||||
| Other income (expense): | ||||||||||||||||||||||||||
| Interest expense, net | ( | ( | ( | ( | ||||||||||||||||||||||
| Other income (expense), net | ( | |||||||||||||||||||||||||
| Total other income (expense), net | ( | ( | ( | |||||||||||||||||||||||
| Loss before income tax benefit | ( | ( | ( | ( | ||||||||||||||||||||||
| Income tax benefit | ( | ( | ( | ( | ||||||||||||||||||||||
| Net loss | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||
| Loss per share | ||||||||||||||||||||||||||
| Basic | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||
| Diluted | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||
| Weighted average shares outstanding | ||||||||||||||||||||||||||
| Basic | ||||||||||||||||||||||||||
| Diluted | ||||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
3
AngioDynamics, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(unaudited)
(in thousands of dollars)
| Three Months Ended | Six Months Ended | |||||||||||||||||||||||||
| Nov 30, 2020 | Nov 30, 2019 | Nov 30, 2020 | Nov 30, 2019 | |||||||||||||||||||||||
| Net loss | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||
| Other comprehensive income (loss), before tax: | ||||||||||||||||||||||||||
| Foreign currency translation | ||||||||||||||||||||||||||
| Other comprehensive income, before tax | ||||||||||||||||||||||||||
| Income tax expense related to items of other comprehensive income (loss) | ||||||||||||||||||||||||||
| Other comprehensive income, net of tax | ||||||||||||||||||||||||||
| Total comprehensive loss, net of tax | $ | ( | $ | ( | $ | ( | $ | ( | ||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
4
AngioDynamics, Inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(unaudited)
(in thousands of dollars, except share data)
| Nov 30, 2020 | May 31, 2020 | ||||||||||
| Assets | |||||||||||
| Current assets | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
Accounts receivable, net of allowances of $ | |||||||||||
| Inventories | |||||||||||
| Prepaid expenses and other | |||||||||||
| Total current assets | |||||||||||
| Property, plant and equipment, net | |||||||||||
| Other assets | |||||||||||
| Intangible assets, net | |||||||||||
| Goodwill | |||||||||||
| Total assets | $ | $ | |||||||||
| Liabilities and stockholders' equity | |||||||||||
| Current liabilities | |||||||||||
| Accounts payable | $ | $ | |||||||||
| Accrued liabilities | |||||||||||
| Current portion of contingent consideration | |||||||||||
| Other current liabilities | |||||||||||
| Total current liabilities | |||||||||||
| Long-term debt, net of current portion | |||||||||||
| Deferred income taxes | |||||||||||
| Contingent consideration, net of current portion | |||||||||||
| Other long-term liabilities | |||||||||||
| Total liabilities | |||||||||||
| Commitments and contingencies (Note 14) | |||||||||||
| Stockholders' equity | |||||||||||
Preferred stock, par value $ | |||||||||||
Common stock, par value $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Accumulated deficit | ( | ( | |||||||||
Treasury stock, | ( | ( | |||||||||
| Accumulated other comprehensive income (loss) | ( | ||||||||||
| Total Stockholders’ Equity | |||||||||||
| Total Liabilities and Stockholders' Equity | $ | $ | |||||||||
The accompanying notes are an integral part of these consolidated financial statements.
5
AngioDynamics, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
(in thousands of dollars)
| Six Months Ended | |||||||||||
| Nov 30, 2020 | Nov 30, 2019 | ||||||||||
| Cash flows from operating activities: | |||||||||||
| Net loss | $ | ( | $ | ( | |||||||
| Adjustments to reconcile net loss to net cash provided by (used in) operating activities: | |||||||||||
| Depreciation and amortization | |||||||||||
| Non-cash lease expense | |||||||||||
| Stock based compensation | |||||||||||
| Change in fair value of contingent consideration | ( | ( | |||||||||
| Deferred income taxes | ( | ( | |||||||||
| Change in accounts receivable allowances | |||||||||||
| Fixed and intangible asset impairments and disposals | |||||||||||
| Write-off of other assets | |||||||||||
| Other | ( | ( | |||||||||
| Changes in operating assets and liabilities: | |||||||||||
| Accounts receivable | ( | ||||||||||
| Inventories | ( | ||||||||||
| Prepaid expenses and other | ( | ( | |||||||||
| Accounts payable, accrued and other liabilities | ( | ( | |||||||||
| Net cash provided by (used in) operating activities | ( | ||||||||||
| Cash flows from investing activities: | |||||||||||
| Additions to property, plant and equipment | ( | ( | |||||||||
| Acquisition of intangibles | ( | ||||||||||
| Cash paid for acquisitions | ( | ||||||||||
| Net cash used in investing activities | ( | ( | |||||||||
| Cash flows from financing activities: | |||||||||||
| Repayment of long-term debt | ( | ||||||||||
| Deferred financing costs on long-term debt | ( | ||||||||||
| Payment of acquisition related contingent consideration | ( | ||||||||||
| Proceeds (outlays) from exercise of stock options and employee stock purchase plan | ( | ||||||||||
| Net cash provided by (used in) financing activities | ( | ||||||||||
| Effect of exchange rate changes on cash and cash equivalents | |||||||||||
| Increase (decrease) in cash and cash equivalents | ( | ||||||||||
| Cash and cash equivalents at beginning of period | |||||||||||
| Cash and cash equivalents at end of period | $ | $ | |||||||||
| Supplemental disclosure of non-cash investing and financing activities: | |||||||||||
| Accrual for capital expenditures incurred during the period | $ | $ | |||||||||
| Fair value of contingent consideration for acquisitions | |||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
6
AngioDynamics, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(unaudited)
(in thousands of dollars, except share data)
| Common Stock | Additional paid in capital | Accumulated deficit | Accumulated other comprehensive income (loss) | Treasury Stock | |||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Total | |||||||||||||||||||||||||||||||||||||||||||
| Balance at May 31, 2020 | $ | $ | $ | ( | $ | ( | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Issuance/Cancellation of restricted stock units | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Purchases of common stock under ESPP | |||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | |||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive income, net of tax | |||||||||||||||||||||||||||||||||||||||||||||||
| Balance at August 31, 2020 | $ | $ | $ | ( | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Issuance/Cancellation of restricted stock units | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | |||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive income, net of tax | |||||||||||||||||||||||||||||||||||||||||||||||
| Balance at November 30, 2020 | $ | $ | $ | ( | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||||
| Common Stock | Additional paid in capital | Retained earnings | Accumulated other comprehensive loss | Treasury Stock | |||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Total | |||||||||||||||||||||||||||||||||||||||||||
| Balance at May 31, 2019 | $ | $ | $ | $ | ( | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Exercise of stock options | |||||||||||||||||||||||||||||||||||||||||||||||
| Issuance/Cancellation of restricted stock units | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Purchases of common stock under ESPP | |||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | |||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss, net of tax | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Balance at August 31, 2019 | $ | $ | $ | $ | ( | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||||
| Net loss | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Issuance/Cancellation of restricted stock units | |||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | |||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive income, net of tax | |||||||||||||||||||||||||||||||||||||||||||||||
| Balance at November 30, 2019 | $ | $ | $ | $ | ( | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
7
AngioDynamics, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. CONSOLIDATED FINANCIAL STATEMENTS
The Consolidated Balance Sheet as of November 30, 2020, the Consolidated Statements of Operations and the Consolidated Statements of Comprehensive Loss for the three and six months ended November 30, 2020 and 2019, the Consolidated Statements of Stockholders’ Equity for the three months ended November 30, 2020 and 2019 and the Consolidated Statements of Cash Flows for the six months ended November 30, 2020 and 2019 have been prepared by the Company and are unaudited. The Consolidated Balance Sheet as of May 31, 2020 was derived from audited consolidated financial statements but does not include all disclosures required by accounting principles generally accepted in the United States of America. In the opinion of management, all adjustments (consisting of normal recurring adjustments) necessary to state fairly the financial position, changes in stockholders’ equity and comprehensive income, results of operations and cash flows as of and for the period ended November 30, 2020 (and for all periods presented) have been made.
The unaudited interim consolidated financial statements for the three and six months ended November 30, 2020 and 2019 include the accounts of AngioDynamics, Inc. and its wholly owned subsidiaries, collectively, the “Company”. All intercompany balances and transactions have been eliminated.
2. ACQUISITIONS
C3 Wave Tip Location Acquisition
On December 17, 2019, the Company acquired the C3 Wave tip location asset from Medical Components Inc. for an aggregate purchase price of $10.0 million with $5.0 million of potential future contingent consideration related to technical milestones. This acquisition fills a gap in the Vascular Access portfolio and supports the Company's strategic plan. The Company accounted for this acquisition as an asset purchase. The Company recorded the amount paid at closing as inventory of $0.6 million and intangible assets of a trademark of $0.9 million and product technology of $8.5 million. The intangible assets will be amortized over 15 years. The contingent consideration is comprised of technical milestones and will be accounted for when the contingency is resolved or becomes probable and reasonably estimable.
Eximo Acquisition
On October 2, 2019, the Company entered into a share purchase agreement to acquire Eximo Medical, Ltd., a pre-commercial stage medical device company and its proprietary 355nm B Laser Atherectomy technology. The aggregate purchase price of $60.7 million included an upfront payment of $45.8 million and contingent consideration with an estimated fair value of $14.9 million. This acquisition expands and complements the Company’s Vascular Interventions and Therapies product portfolio by adding the 355nm B Laser Atherectomy technology which treats Peripheral Artery Disease.
The Company accounted for the Eximo acquisition under the acquisition method of accounting for business combinations. Accordingly, the cost to acquire the assets was allocated to the underlying net assets in proportion to estimates of their respective fair values. The excess of the purchase price over the estimated fair value of the net assets acquired was recorded as goodwill. Goodwill is non-deductible for income tax purposes.
The Company has not disclosed the amount of revenue and earnings for sales of Eximo products since acquisition, nor proforma information, because these amounts are not significant to the Company's financial statements. Acquisition-related costs associated with the Eximo acquisition, which are included in "acquisition, restructuring and other items, net" in the accompanying Consolidated Statements of Operations, were approximately $0.6 million in fiscal year 2020. The following table summarizes the final aggregate purchase price allocated to the net assets acquired:
8
| (in thousands) | Final allocation | ||||
| Accounts receivable | $ | ||||
| Inventory | |||||
| Prepaid and other current assets | |||||
| Long-term deposits | |||||
| Property, plant and equipment | |||||
| Intangible assets: | |||||
| Product technology | |||||
| Goodwill | |||||
| Total assets acquired | $ | ||||
| Liabilities assumed | |||||
| Accounts payable | $ | ||||
| Other current liabilities | |||||
| Deferred tax liabilities | |||||
| Total liabilities assumed | $ | ||||
| Net assets acquired | $ | ||||
The Company finalized the allocation of the purchase price to the assets acquired and liabilities assumed in the fourth quarter of fiscal year 2020.
The value assigned to the product technology was derived using the multi-period excess earnings method under the income approach. This approach estimates the excess earnings generated over the lives of the customers that existed as of the acquisition date and discounts such earnings to present value. The product technology is deemed to have a useful life of fifteen years and will be amortized on a straight-line basis over the useful life.
The goodwill arising from the acquisition consists largely of synergies and economies of scale the Company hopes to achieve from combining the acquired assets with the Company's current operations.
3. REVENUE FROM CONTRACTS WITH CUSTOMERS
The Company has one primary revenue stream which is the sales of its products.
Disaggregation of Revenue
The following tables summarize net product revenue by Global Business Unit ("GBU") and geography:
Three Months Ended Nov 30, 2020 | Three Months Ended Nov 30, 2019 | ||||||||||||||||||||||||||||||||||
| (in thousands) | United States | International | Total | United States | International | Total | |||||||||||||||||||||||||||||
| Net sales | |||||||||||||||||||||||||||||||||||
| Vascular Interventions & Therapies | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
| Vascular Access | $ | ||||||||||||||||||||||||||||||||||
| Oncology | $ | ||||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
9
Six Months Ended Nov 30, 2020 | Six Months Ended Nov 30, 2019 | ||||||||||||||||||||||||||||||||||
| (in thousands) | United States | International | Total | United States | International | Total | |||||||||||||||||||||||||||||
| Net sales | |||||||||||||||||||||||||||||||||||
| Vascular Interventions & Therapies | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
| Vascular Access | $ | ||||||||||||||||||||||||||||||||||
| Oncology | $ | ||||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
Net Product Revenue
The Company's products consist of a wide range of medical, surgical and diagnostic devices used by professional healthcare providers for vascular access, for the treatment of peripheral vascular disease and for use in oncology and surgical settings. The Company's devices are generally used in minimally invasive, image-guided procedures. Most of the Company's products are intended to be used once and then discarded, or they may be implanted for short or long term use. The Company sells its products to its distribution partners and to end users, such as interventional radiologists, interventional cardiologists, vascular surgeons, urologists, interventional and surgical oncologists and critical care nurses.
Contracts and Performance Obligations
The Company contracts with its customers based on customer purchase orders, which in many cases are governed by master purchasing agreements. The Company’s contracts with customers are generally for product only, and do not include other performance obligations such as services or other material rights. As part of its assessment of each contract, the Company evaluates certain factors including the customer’s ability to pay (or credit risk). For each contract, the Company considers the promise to transfer products, each of which is distinct, to be the identified performance obligations.
Transaction Price and Allocation to Performance Obligations
Transaction prices of products are typically based on contracted rates. Product revenue is measured as the amount of consideration the Company expects to receive in exchange for transferring products to a customer. To the extent the transaction price includes variable consideration, the Company estimates the amount of variable consideration that should be included in the transaction price utilizing the expected value method. As such, revenue is recorded net of rebates, returns and other deductions.
If a contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. Contracts that contain multiple performance obligations require an allocation of the transaction price based on the estimated relative standalone selling prices of the promised products underlying each performance obligation. The Company has standard pricing for its products and determines standalone selling prices based on the price at which the performance obligation is sold separately.
Revenue Recognition
Revenue is recognized when control of the product is transferred to the customer (i.e., when the Company’s performance obligation is satisfied), which occurs at a point in time, and may be upon shipment from the Company’s manufacturing site or delivery to the customer’s named location, based on the contractual shipping terms of a contract.
In determining whether control has transferred, the Company considers if there is a present right to payment from the customer and when physical possession, legal title and risks and rewards of ownership have transferred to the customer.
The Company typically invoices customers upon satisfaction of identified performance obligations. As the Company’s standard payment terms are 30 to 90 days from invoicing, the Company does not provide any significant financing to its customers.
Sales, value add, and other taxes collected on behalf of third parties are excluded from revenue.
Variable Consideration
Revenues from product sales are recorded at the net sales price (transaction price), which includes estimates of variable consideration for which reserves are established for discounts, returns, rebates and allowances that are offered within contracts between the Company and its customers. These reserves are based on the amounts earned or to be claimed on the related sales and are classified as a contra asset.
10
Contract Balances with Customers
A receivable is recognized in the period the Company ships the product. Payment terms on invoiced amounts are based on contractual terms with each customer and generally coincide with revenue recognition. Accordingly, the Company does not have any contract assets associated with the future right to invoice its customers. In some cases, if control of the product has not yet transferred to the customer or the timing of the payments made by the customer precedes the Company’s fulfillment of the performance obligation, the Company recognizes a contract liability that is included in deferred revenue in the accompanying Consolidated Balance Sheets.
The following table presents changes in the Company’s receivables, contract assets and contract liabilities with customers:
| (in thousands) | Nov 30, 2020 | May 31, 2020 | |||||||||
| Receivables | $ | $ | |||||||||
| Contract assets | $ | $ | |||||||||
| Contract liabilities | $ | $ | |||||||||
During the six months ended November 30, 2020, the Company had additions to contract liabilities of $0.6 million. This was offset by $0.7 million in revenue that was recognized during the six months ended November 30, 2020.
Costs to Obtain or Fulfill a Customer Contract
Under ASC 606, the Company recognizes an asset for incremental costs of obtaining a contract with a customer if it expects to recover those costs. The Company’s sales incentive compensation plans qualify for capitalization since these plans are directly related to sales achieved during a period of time. However, the Company has elected the practical expedient under ASC 340-40-25-4 to expense the costs as they are incurred within selling and marketing expenses since the amortization period is less than one year.
The Company accounts for shipping and handling activities related to contracts with customers as costs to fulfill the promise to transfer the associated products. Shipping and handling costs, associated with the distribution of finished products to customers, are recorded in costs of goods sold and are recognized when the related finished product is shipped to the customer. Amounts charged to customers for shipping are recorded in net sales.
4. INVENTORIES
Inventories are stated at lower of cost and net realizable value (using the first-in, first-out method). Inventories consisted of the following:
| (in thousands) | Nov 30, 2020 | May 31, 2020 | |||||||||
| Raw materials | $ | $ | |||||||||
| Work in process | |||||||||||
| Finished goods | |||||||||||
| Inventories | $ | $ | |||||||||
The Company periodically reviews for both obsolescence and loss of value. The Company makes assumptions about the future demand for and market value of the inventory. Based on these assumptions, the Company estimates the amount of
11
5. GOODWILL AND INTANGIBLE ASSETS
Intangible assets other than goodwill are amortized over their estimated useful lives on either a straight-line basis or proportionately to the benefit being realized. Useful lives range from to eighteen years . The Company periodically reviews the estimated useful lives of its intangible assets and reviews such assets or asset groups for impairment whenever events or changes in circumstances indicate that the carrying value of the assets or asset groups may not be recoverable. If an intangible asset or asset group is considered to be impaired, the amount of the impairment will equal the excess of the carrying value over the fair value of the asset.
Goodwill is not amortized, but rather, is tested for impairment annually or more frequently if impairment indicators arise. Goodwill represents the excess of the purchase price over the fair value of the net tangible and identifiable intangible assets acquired in each business combination.
The Company's annual testing for impairment of goodwill was completed as of December 31, 2019. The Company operates as a single operating segment with one reporting unit and consequently evaluates goodwill for impairment based on an evaluation of the fair value of the Company as a whole. The Company determines the fair value of the reporting unit based on the market valuation approach and concluded that it was not more-likely-than-not that the fair value of the Company's reporting unit was less than its carrying value as of December 31, 2019. In the fourth quarter of fiscal year 2020, the Company concluded that the sustained decline in its market capitalization represented an impairment indicator that required the Company to perform an interim test for goodwill impairment as of May 31, 2020 and the Company recorded a goodwill impairment charge of $158.6 million as of May 31, 2020 to write down the carrying value of the reporting unit to fair value.
The future occurrence of another potential indicator of impairment, such as a significant adverse change in legal, regulatory, business or economic conditions or a more-likely-than-not expectation that the reporting unit or a significant portion of the reporting unit will be sold or disposed of, would require another interim assessment for the reporting unit prior to the next required annual assessment as of December 31, 2020.
There were no adjustments to goodwill for the six months ended November 30, 2020 other than foreign currency translation adjustments.
Intangible assets consisted of the following:
| Nov 30, 2020 | |||||||||||||||||
| (in thousands) | Gross carrying value | Accumulated amortization | Net carrying value | ||||||||||||||
| Product technologies | $ | $ | ( | $ | |||||||||||||
| Customer relationships | ( | ||||||||||||||||
| Trademarks | ( | ||||||||||||||||
| Licenses | ( | ||||||||||||||||
| $ | $ | ( | $ | ||||||||||||||
| May 31, 2020 | |||||||||||||||||
| (in thousands) | Gross carrying value | Accumulated amortization | Net carrying value | ||||||||||||||
| Product technologies | $ | $ | ( | $ | |||||||||||||
| Customer relationships | ( | ||||||||||||||||
| Trademarks | ( | ||||||||||||||||
| Licenses | ( | ||||||||||||||||
| $ | $ | ( | $ | ||||||||||||||
Amortization expense for the three months ended November 30, 2020 and 2019 was $4.6 million and $4.5 million, respectively. Amortization expense for the six months ended November 30, 2020 and 2019 was $9.5 million and $8.4 million, respectively.
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Expected future amortization expense related to the intangible assets is as follows:
| (in thousands) | |||||
| Remainder of 2021 | $ | ||||
| 2022 | |||||
| 2023 | |||||
| 2024 | |||||
| 2025 | |||||
| 2026 and thereafter | |||||
| $ | |||||
6. ACCRUED LIABILITIES
Accrued liabilities consisted of the following:
| (in thousands) | Nov 30, 2020 | May 31, 2020 | |||||||||
| Payroll and related expenses | $ | $ | |||||||||
| Royalties | |||||||||||
| Accrued severance | |||||||||||
| Sales and franchise taxes | |||||||||||
| Outside services | |||||||||||
| Indemnification holdback | |||||||||||
| Other | |||||||||||
| $ | $ | ||||||||||
7. LONG TERM DEBT
On June 3, 2019 and in connection with the completion of the Fluid Management divestiture, the Company repaid all amounts outstanding under its existing Credit Agreement and entered into a new Credit Agreement with the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and Bank of America, N.A. and KeyBank National Association, as co-syndication agents.
The Credit Agreement provides for a $125.0 million secured revolving credit facility (the “Revolving Facility”), which includes an uncommitted expansion feature that allows the Company to increase the total revolving commitments and/or add new tranches of term loans in an aggregate amount not to exceed $75.0 million. The proceeds may be used to refinance certain existing indebtedness of the Company and its subsidiaries, to finance the working capital needs, and for general corporate purposes (including permitted acquisitions), of the Company and its subsidiaries.
The Credit Agreement has a five year maturity. Interest on the facility will be based, at the Company’s option, on a base rate of LIBOR plus an applicable margin tied to the Company’s total leverage ratio and having ranges between 0.25 % and 0.75 % for base rate loans and between 1.25 % and 1.75 % for LIBOR loans. After default, the interest rate may be increased by 2.0 %. The facility will also carry a commitment fee of 0.20 % to 0.25 % per annum on the unused portion.
The Company's obligations under the Revolving Facility are unconditionally guaranteed, jointly and severally, by the Company's material direct and indirect domestic subsidiaries (the “Guarantors”). All obligations of the Company and the Guarantors under the Revolving Facility are secured by first priority security interests in substantially all of the assets of the Company and the Guarantors.
The Credit Agreement includes customary representations, warranties and covenants, and acceleration, indemnity and events of default provisions, including, among other things, two quarterly financial covenants as follows:
•maximum leverage ratio of consolidated total indebtedness* to consolidated EBITDA* of not greater than 3.00 to 1.00 (during certain periods following material acquisitions the ratio shall be increased to 3.50 to 1.00).
•fixed charge coverage ratio of consolidated EBITDA minus consolidated capital expenditures to consolidated interest expense paid or payable in cash plus scheduled principal payments in respect of indebtedness under the Credit Agreement of not less than 1.25 to 1.00.
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* The definitions of consolidated total indebtedness and consolidated EBITDA are maintained in the credit agreement included as an exhibit to Form 8-k filed on June 6, 2019.
As of November 30, 2020, there was $40.0 million outstanding balance on the Revolving Facility. As of November 30, 2020 and May 31, 2020, the carrying value of long-term debt approximated its fair market value.
The interest rate on the Revolving Facility at November 30, 2020 was 1.65 %.
The Company was in compliance with the Credit Agreement covenants as of November 30, 2020.
8. INCOME TAXES
The Company provides for income taxes at the end of each interim period based on the estimated effective tax rate for the full fiscal year adjusted for any discrete events, which are recorded in the period that they occur. The estimated annual effective tax rate prior to discrete items was 16.1 % as of the second quarter of fiscal year 2021, as compared to 13.2 % for the same period in fiscal year 2020. In fiscal year 2021, the Company’s effective tax rate differs from the U.S. statutory rate primarily due to the impact of the valuation allowance, foreign taxes, and other non-deductible permanent items (such as non-deductible meals and entertainment, Section 162(m) excess compensation and non-deductible share based compensation).
The Company regularly assesses its ability to realize its deferred tax assets. Assessing the realization of deferred tax assets requires significant management judgment. In determining whether its deferred tax assets are more likely than not realizable, the Company evaluated all available positive and negative evidence, and weighted the evidence based on its objectivity.
Based on the review of all available evidence, the Company determined that it has not yet attained a sustained level of profitability and the objectively verifiable negative evidence outweighed the positive evidence. Therefore, the Company has provided a valuation allowance on its federal and state net operating loss carryforwards, federal and state R&D credit carryforwards and other net deferred tax assets that have a limited life and are not supportable by the naked credit deferred tax liability sourced income as of November 30, 2020. The Company will continue to assess the level of the valuation allowance required. If sufficient positive evidence exists in future periods to support a release of some or all of the valuation allowance, such a release would likely have a material impact on the Company’s results of operations.
9. SHARE-BASED COMPENSATION
The Company has three stock-based compensation plans that provide for the issuance of up to approximately 14.2 million shares of common stock. The 2004 Stock and Incentive Award Plan (the "2004 Plan") and the 2020 Stock and Incentive Award Plan (the "2020 Plan") provide for the grant of up to 7.8 million and 2.4 million shares of common stock, respectively. These plans provide for the grant of incentive stock options, non-statutory stock options, restricted stock, stock appreciation rights, performance units, performance shares and other incentive awards to the Company's employees, directors and other service providers. The Company also has an employee stock purchase plan which provides for the issuance of up to 4.0 million shares of common stock.
For the three months ended November 30, 2020 and 2019, share-based compensation expense was $2.4 million and $2.2 million, respectively. For the six months ended November 30, 2020 and 2019, share-based compensation expense was $4.3 million and $4.2 million, respectively
During the six months ended November 30, 2020 and 2019, the Company granted stock options and restricted stock units under the 2004 and 2020 Plan to certain employees and members of the Board of Directors. Stock option awards are valued using the Black-Scholes option-pricing model and then amortized on a straight-line basis over the requisite service period of the award. Restricted stock unit awards are valued based on the closing trading value of the Company's shares on the date of grant and then amortized on a straight-line basis over the requisite service period of the award.
During the six months ended November 30, 2020 and 2019, the Company granted performance share units under the 2004 Plan to certain employees. The awards may be earned by achieving relative performance levels over the year requisite service period. The performance criteria are based on achieving certain performance targets and the total shareholder return ("TSR") of the Company's common stock relative to the TSR of the common stock of a pre-defined industry peer-group. The fair value of these awards are based on the closing trading value of the Company's shares on the date of grant and use a Monte Carlo simulation model.
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10. EARNINGS PER SHARE
Basic earnings per share is based on the weighted average number of common shares outstanding without consideration of potential common stock. Diluted earnings per share includes the dilutive effect of potential common stock consisting of stock options, restricted stock units and performance stock units, provided that the inclusion of such securities is not anti-dilutive. In periods with a net loss, stock options and restricted stock units are not included in the computation of diluted loss per share as the impact would be anti-dilutive.
The following table reconciles basic to diluted weighted-average shares outstanding:
| Three Months Ended | Six Months Ended | ||||||||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | Nov 30, 2020 | Nov 30, 2019 | |||||||||||||||||||
| Basic | |||||||||||||||||||||||
| Effect of dilutive securities | |||||||||||||||||||||||
| Diluted | |||||||||||||||||||||||
| Securities excluded as their inclusion would be anti-dilutive | |||||||||||||||||||||||
11. SEGMENT AND GEOGRAPHIC INFORMATION
The Company considers the business to be a single operating segment engaged in the development, manufacture and sale of medical devices for vascular access, peripheral vascular disease and oncology on a global basis. The Company's chief operating decision maker, the President and Chief Executive Officer (CEO), evaluates the various global product portfolios on a net sales basis. Executives reporting to the CEO include those responsible for commercial operations, manufacturing operations, regulatory and quality and certain corporate functions. The CEO evaluates profitability, investment and cash flow metrics on a consolidated worldwide basis due to shared infrastructure and resources.
The table below summarizes net sales by Global Business Unit:
| Three Months Ended | Six Months Ended | ||||||||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | Nov 30, 2020 | Nov 30, 2019 | |||||||||||||||||||
| Net sales | |||||||||||||||||||||||
| Vascular Interventions & Therapies | $ | $ | $ | $ | |||||||||||||||||||
| Vascular Access | |||||||||||||||||||||||
| Oncology | |||||||||||||||||||||||
| Total | $ | $ | $ | $ | |||||||||||||||||||
The table below presents net sales by geographic area based on external customer location:
| Three Months Ended | Six Months Ended | ||||||||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | Nov 30, 2020 | Nov 30, 2019 | |||||||||||||||||||
| Net sales | |||||||||||||||||||||||
| United States | $ | $ | $ | $ | |||||||||||||||||||
| International | |||||||||||||||||||||||
| Total | $ | $ | $ | $ | |||||||||||||||||||
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12. FAIR VALUE
On a recurring basis, the Company measures certain financial assets and financial liabilities at fair value based upon quoted market prices, where available. Where quoted market prices or other observable inputs are not available, the Company applies valuation techniques to estimate fair value. FASB ASC Topic 820, Fair Value Measurements and Disclosures, establishes a three-level valuation hierarchy for disclosure of fair value measurements. The categorization of financial assets and financial liabilities within the valuation hierarchy is based upon the lowest level of input that is significant to the measurement of fair value. The three levels of the hierarchy are defined as follows:
•Level 1 - Inputs to the valuation methodology are quoted market prices for identical assets or liabilities.
•Level 2 - Inputs to the valuation methodology are other observable inputs, including quoted market prices for similar assets or liabilities and market-corroborated inputs.
•Level 3 - Inputs to the valuation methodology are unobservable inputs based on management’s best estimate of inputs market participants would use in pricing the asset or liability at the measurement date, including assumptions about risk.
The Company's financial instruments include cash and cash equivalents, accounts receivable, accounts payable and contingent consideration. The carrying amount of cash and cash equivalents, accounts receivable, and accounts payable approximates fair value due to the immediate or short-term maturities. The Company's recurring fair value measurements using significant unobservable inputs (Level 3) relate to contingent consideration liabilities.
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| Fair Value Measurements using inputs considered as: | Fair Value at Nov 30, 2020 | ||||||||||||||||||||||
| (in thousands) | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||
| Financial Liabilities | |||||||||||||||||||||||
| Contingent consideration for acquisition earn outs | $ | $ | $ | $ | |||||||||||||||||||
| Total Financial Liabilities | $ | $ | $ | $ | |||||||||||||||||||
| Fair Value Measurements using inputs considered as: | Fair Value at May 31, 2020 | ||||||||||||||||||||||
| (in thousands) | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||
| Financial Liabilities | |||||||||||||||||||||||
| Contingent consideration for acquisition earn outs | $ | $ | $ | $ | |||||||||||||||||||
| Total Financial Liabilities | $ | $ | $ | $ | |||||||||||||||||||
There were no transfers between Level 1, 2 and 3 for the three and six months ended November 30, 2020.
The table below presents the changes in fair value components of Level 3 instruments:
Three Months Ended Nov 30, 2020 | |||||
| (in thousands) | Fair Value Measurements Using Significant Unobservable Inputs (Level 3) | ||||
| Balance, August 31, 2020 | $ | ||||
| Total gains or losses (realized/unrealized): | |||||
Change in present value of contingent consideration (1) | |||||
Balance, November 30, 2020 | $ | ||||
Six Months Ended Nov 30, 2020 | |||||
| (in thousands) | Fair Value Measurements Using Significant Unobservable Inputs (Level 3) | ||||
Balance, May 31, 2020 | $ | ||||
| Total gains or losses (realized/unrealized): | |||||
Change in present value of contingent consideration (1) | ( | ||||
| Currency gain from remeasurement | |||||
Balance, November 30, 2020 | $ | ||||
Contingent Consideration for Acquisition Earn Outs
Some of the Company's business combinations involve the potential for the payment of future contingent consideration upon the achievement of certain product development milestones or various other performance conditions. Payment of the additional consideration is generally contingent on the acquired company reaching certain performance milestones, including attaining specified revenue levels or product development targets. Contingent consideration is recorded at the estimated fair value of the contingent payments on the acquisition date. The fair value of the contingent consideration is remeasured at the estimated fair value at each reporting period with the change in fair value recognized as income or expense within change in fair value of contingent consideration in the Consolidated Statements of Operations.
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The Company measures the initial liability and remeasures the liability on a recurring basis using Level 3 inputs as defined under authoritative guidance for fair value measurements. The fair value is determined using a discounted cash flow model applied to projected net sales, using probabilities of achieving projected net sales and projected payment dates. Projected net sales are based on the Company's internal projections and extensive analysis of the target market and the sales potential. Increases or decreases in any valuation inputs in isolation may result in a significantly lower or higher fair value measurement in the future.
The recurring Level 3 fair value measurements of the contingent consideration liabilities include the following significant unobservable inputs as of November 30, 2020:
| (in thousands) | Fair Value | Valuation Technique | Unobservable Input | Range | |||||||||||||||||||
| Revenue based payments | $ | Discounted cash flow | Discount rate | ||||||||||||||||||||
| Probability of payment | 66% - 100% | ||||||||||||||||||||||
| Projected fiscal year of payment | 2024 - 2025 | ||||||||||||||||||||||
13. LEASES
The Company determines if an arrangement is a lease at inception of the contract. The Company has operating leases for buildings, primarily for office space, R&D, manufacturing and warehousing.
Operating lease right-of-use (“ROU”) assets and operating lease liabilities are recognized based on the present value of the future minimum lease payments over the lease term at commencement date. Many of the lease agreements contain renewal or termination clauses that are factored into the determination of the lease term if it is reasonably certain that these options would be exercised. The Company recognizes lease expense for these leases on a straight-line basis over the lease term.
The following table presents supplemental balance sheet information related to leases:
| (in thousands) | Balance Sheet Location | Nov 30, 2020 | May 31, 2020 | ||||||||||||||
| Assets | |||||||||||||||||
| Operating lease ROU asset | Other assets | $ | $ | ||||||||||||||
| Liabilities | |||||||||||||||||
| Current operating lease liabilities | |||||||||||||||||
| Non-current operating lease liabilities | |||||||||||||||||
| Total lease liabilities | $ | $ | |||||||||||||||
The interest rate implicit in lease agreements is typically not readily determinable, and as such the Company used the incremental borrowing rate based on the information available at commencement date in determining the present value of future payments. The incremental borrowing rate is defined as the interest the Company would pay to borrow on a collateralized basis, considering factors such as length of lease term. The following table presents the weighted average remaining lease term and discount rate:
| Nov 30, 2020 | |||||
| Weighted average remaining term (in years) | |||||
| Weighted average discount rate | % | ||||
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The following table presents the maturities of the lease liabilities:
| (in thousands) | Nov 30, 2020 | ||||
| Remainder of 2021 | $ | ||||
| 2022 | |||||
| 2023 | |||||
| 2024 | |||||
| 2025 | |||||
| 2026 and thereafter | |||||
| Total lease payments | $ | ||||
| Less: Imputed Interest | |||||
| Total lease obligations | $ | ||||
| Less: Current portion of lease obligations | |||||
| Long-term lease obligations | $ | ||||
During the three months ended November 30, 2020 and 2019, the Company recognized $0.7 million and $0.9 million of operating lease expense, respectively, which includes immaterial short-term leases. During the six months ended November 30, 2020 and 2019, the Company recognized $1.6 million and $1.5 million of operating lease expense, respectively, which includes immaterial short-term leases. The expenses on the Consolidated Statement of Operations were classified as follows:
| Three Months Ended | Six Months Ended | ||||||||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | Nov 30, 2020 | Nov 30, 2019 | |||||||||||||||||||
| Cost of sales | $ | $ | $ | $ | |||||||||||||||||||
| Research and development | |||||||||||||||||||||||
| Sales and marketing | |||||||||||||||||||||||
| General and administrative | |||||||||||||||||||||||
| $ | $ | $ | $ | ||||||||||||||||||||
The following table presents supplemental cash flow and other information related to leases for the six months ended:
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | |||||||||
| Cash paid for amounts included in the measurement of lease liabilities | |||||||||||
| Operating cash flows from operating leases | $ | $ | |||||||||
| ROU assets obtained in exchange for lease liabilities | |||||||||||
| Operating leases | $ | $ | |||||||||
14. COMMITMENTS AND CONTINGENCIES
Legal Proceedings
The Company is involved in various legal proceedings, including commercial, intellectual property, product liability, and regulatory matters of a nature considered normal for its business. The Company accrues for amounts related to these matters if it is probable that a liability has been incurred, and an amount can be reasonably estimated. The Company discloses such matters when there is at least a reasonable possibility that a material loss may have been incurred. However, the Company cannot predict the outcome of any litigation or the potential for future litigation.
C.R. Bard, Inc. v. AngioDynamics, Inc.
On January 11, 2012, C.R. Bard, Inc. (“Bard”) filed a suit in the United States District Court of Utah claiming certain of the Company's implantable port products infringe on three U.S. patents held by Bard (the "Utah Action"). Bard’s complaint sought unspecified damages and other relief. The Company filed petitions for reexamination in the US Patent and Trademark Office ("USPTO") seeking to invalidate all three patents asserted by Bard in the litigation. The Company's petitions were
19
granted and 40 of Bard's 41 patent claims were rejected and, following further proceedings, the Patent Office issued a Final Rejection of all 40 claims subject to reexamination. Thereafter, Bard filed appeals to the USPTO Board of Appeals and Interferences for all three reexaminations which were decided as follows: For US Patent No. 7,785,302, the rejections of six of the ten claims under reexamination were affirmed, but were reversed on four of the ten claims. For U.S. Patent No. 7,959,615 the rejections of eight of the ten claims under reexamination were affirmed but the rejections of the other two of the ten claims were reversed. In the third, for U.S. Patent No. 7,947,022 the rejections of all twenty claims under reexamination were affirmed. Thereafter, Bard sought Rehearing in all three appeals and the Company sought Rehearing in the ‘302 and ‘615 appeals. The USPTO denied all three Rehearing Requests, but modified its characterization of one prior art reference for the ‘302 and ‘022 decisions.
Bard filed appeals to the Federal Circuit Court of Appeals in all three reexams and the Company Cross-Appealed for the ‘302 and the ‘615 reexams. MedComp also filed an Amicus Brief in support of the Company on November 22, 2017. Meanwhile, on July 12, 2017 Bard assigned the asserted patents to Bard Peripheral Vascular, Inc. (“BPV”) which was added as co-Appellant before the Federal Circuit and as a co-Plaintiff in the Utah action. An oral hearing was held on September 5, 2018 and the Court rendered its decision on September 28, 2018, affirming that claims 1-5 and 10 of the ‘615 patent were invalid, but that claims 6-7 of the 615 patent and claims 1-4 of the 302 patent were valid over the prior art references considered in the Reexamination proceedings. The Federal Circuit also reversed the PTAB’s claim construction ruling and remanded for consideration of obviousness for the remaining claims under the new claim construction ruling and for further findings with respect to whether one of the asserted references qualified as a printed publication. On January 28, 2019, on remand, the USPTO reversed the rejections of the ‘302 claims 1-10, ‘022 claims 1-20 and ‘615 claims 8-9. The USPTO has since issued Inter Partes Reexamination Certificates for the ‘302 Patent for the ‘022 patent and for the ‘615 patent. The Company thereafter filed a Motion to Unstay the Utah Case and that motion was granted. On November 4, 2019 the Court held a joint Status Conference among the Company’s Utah Action and two other cases filed by Bard on the same patents against MedComp and Smiths. The Court set a schedule for defendant's Motions to Dismiss or Transfer. The Company filed its motion on November 25, 2019; and Bard filed a responsive brief and a motion for venue discovery on December 9, 2019. The Company filed a responsive brief on December 16, 2019 and Bard filed a reply on December 23, 2019. On February 27, 2020, the Court referred all non-dispositive motions to the presiding Magistrate and on March 3, 2020 the Court granted Bard’s Motion for Venue Discovery and denied the Company’s transfer motion without prejudice to re-filing after completion of the venue discovery, but no later than June 30, 2020. Following venue discovery, AngioDynamics re-filed its Motion to Dismiss or Transfer on June 30, 2020. Bard filed an opposition brief on July 28, 2020, and the Company filed a subsequent reply. The Court granted AngioDynamics’s Motion to Transfer on November 16, 2020. The case is currently pending in the District of Delaware and a scheduling conference has been set for January 21, 2021.The Company believes these claims are without merit and intends to defend them vigorously. The Company has not recorded an expense related to the outcome of this litigation because it is not yet possible to determine if a potential loss is probable nor reasonably estimable.
On March 10, 2015, Bard and BPV filed suit in the United States District Court for the District of Delaware (the “Delaware Action") claiming certain of the Company's implantable port products infringe on three other U.S. patents held by Bard, which are different from those asserted in the Utah action. Bard's complaint seeks unspecified damages and other relief. On June 1, 2015, the Company filed two motions in response to Bard’s Complaint - one sought transfer to the District of Utah where the Utah Action is currently pending, and the other sought dismissal of the entire complaint on grounds that none of the claims in the asserted patents is directed to patent eligible subject matter under Section 101 of the Patent Statute and in light of recent authority from the U. S. Supreme Court.
On January 12, 2016, the Court issued a decision denying both motions. A Markman hearing was held on March 10, 2017 and the Court issued its Claim Construction Order on May 19, 2017. On May 19, 2017, Bard served its Final Infringement Contentions and on June 2, 2017, the Company served its Final Invalidity Contentions.
On October 20, 2017, the scheduling order for the case was amended to, among other things, set a trial date commencing July 23, 2018. The parties completed Expert Discovery in January 2018 and completed briefing on their respective case dispositive motions on April 27, 2018. On June 26, 2018, the Court denied all case dispositive motions, ruling that issues of material fact remained in dispute. On July 9, 2018, the Court continued the trial until March 2019. On January 9, 2019 the Court held a further claim construction hearing to resolve two outstanding claim construction issues prior to trial. A Report and Recommendation (by Magistrate-Judge Fallon) was issued on February 11, 2019 and entered by the Court on February 28, 2019. Jury selection was held on Friday March 1, 2019 and trial began on March 4, 2019. On day four of the jury trial, at the close of C.R. Bard’s case, the Court granted the Company's oral motion for judgment as a matter of law under rule 50(a) as well as its motions for summary judgement on the grounds that the asserted patents are invalid, ineligible, not infringed and not willfully infringed. On April 5, 2019, Bard filed a precautionary Notice of Appeal to the Federal Circuit. On April 26, 2019, the District Court issued a Memorandum and Order confirming the grant of judgment in the Company’s favor of patent ineligibility, non-infringement, patent invalidity and no willful infringement. Meanwhile, on May 10, 2019, the Company filed
20
a Motion for Attorney fees and non-taxable expenses under 35 USC Sec. 285. On May 21, 2019, the Court issued a Memorandum and Order which, inter alia, stayed proceedings on the Company’s fee Motion and the Company’s equitable claims pending appeal; and entered Final Judgment on May 21, 2019 as well. Bard filed a second Notice of Appeal on May 23, 2019. Both appeals have since been consolidated and Bard’s opening brief was filed on September 27, 2019; the Company's answering brief was filed on January 15, 2020; and Bard’s reply brief was filed on March 4, 2020. A hearing was held on June 1, 2020, and the court issued its decision on November 10, 2020. The Federal Circuit reversed the judgment in part with respect to Section 101, and vacated and remanded the trial court’s invalidity and non-infringement judgments. The Company filed a combined Petition for rehearing and rehearing en banc on December 10, 2020 which remains pending. The Company maintains its belief that Bard’s claims are without merit. The Company has not recorded an expense related to the outcome of this litigation because it is not yet possible to determine if a potential loss is probable nor reasonably estimable.
AngioDynamics, Inc. v. C.R. Bard, Inc.
On May 30, 2017, the Company commenced an action in the United States District Court for the Northern District of New York entitled AngioDynamics, Inc. v. C.R. Bard, Inc. and Bard Access Systems, Inc. (“Bard”). In this action, the Company alleges that Bard has illegally tied the sales of its tip location systems to the sales of its PICCs. The Company alleges that this practice violates the federal antitrust laws and has had, and continues to have, an anti-competitive effect in the market for PICCs. The Company seeks both monetary damages and injunctive relief. Bard moved to dismiss on September 8, 2017. On August 6, 2018 the court denied Bard’s motion in its entirety. Discovery is largely complete, summary judgment, including all reply briefs, were fully briefed in October 2020, and the case will subsequently proceed to trial thereafter.
Merz North America Settlement
On May 16, 2019, Merz North America, Inc. (“Merz”) commenced an action in the United States District Court for the Southern District of New York entitled Merz North America, Inc. v. AngioDynamics, Inc. In this action, Merz alleged breach of contract against AngioDynamics based on a March 1, 2016 Distribution Agreement. On June 28, 2019, AngioDynamics reached a settlement with Merz. AngioDynamics made a lump-sum payment of $2.5 million to Merz in return for dismissal of the case with prejudice during the first quarter of fiscal year 2020. The case was subsequently dismissed.
15. ACQUISITION, RESTRUCTURING, AND OTHER ITEMS, NET
Acquisition, Restructuring and Other Items
Acquisition, restructuring and other items, net consisted of:
| Three Months Ended | Six Months Ended | ||||||||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | Nov 30, 2020 | Nov 30, 2019 | |||||||||||||||||||
Legal (1) | $ | $ | $ | $ | |||||||||||||||||||
Mergers and acquisitions (2) | |||||||||||||||||||||||
Transition service agreement (3) | ( | ( | ( | ( | |||||||||||||||||||
Divestiture (4) | |||||||||||||||||||||||
| Restructuring | |||||||||||||||||||||||
| Other | |||||||||||||||||||||||
| Total | $ | $ | $ | $ | |||||||||||||||||||
(1) Legal expenses related to litigation that is outside the normal course of business.
(2) Mergers and acquisitions expenses related to investment banking, legal and due diligence.
(3) Transition services agreement that was entered into as a result of the sale of the Fluid Management business.
Included in the $1.4 million in legal for the six months ended November 30, 2019 is a $0.4 million settlement received for the Biolitec bankruptcy litigation. The settlement received offsets legal expenses paid related to the settlement proceedings.
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16. ACCUMULATED OTHER COMPREHENSIVE INCOME
Changes in each component of accumulated other comprehensive income, net of tax, are as follows:
Three Months Ended Nov 30, 2020 | |||||
| (in thousands) | Foreign currency translation income | ||||
| Balance at August 31, 2020 | $ | ||||
| Other comprehensive income before reclassifications, net of tax | |||||
| Amounts reclassified from accumulated other comprehensive loss | |||||
| Net other comprehensive income | $ | ||||
Balance at November 30, 2020 | $ | ||||
Six Months Ended Nov 30, 2020 | |||||
| (in thousands) | Foreign currency translation income | ||||
Balance at May 31, 2020 | $ | ( | |||
| Other comprehensive income before reclassifications, net of tax | |||||
| Amounts reclassified from accumulated other comprehensive loss | |||||
| Net other comprehensive income | $ | ||||
Balance at November 30, 2020 | $ | ||||
17. RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
The following table provides a description of recent accounting pronouncements that may have a material effect on the Company's consolidated financial statements:
| Recently Issued Accounting Pronouncements - Adopted | |||||||||||
| Standard | Description | Date Adopted | Effect on the Consolidated Financial Statements | ||||||||
ASU 2018-13, Fair Value Measurement (Topic 820) | This ASU removes, modifies and adds various disclosure requirements related to fair value disclosures. Disclosures related to transfers between fair value hierarchy levels will be removed and further detail around changes in unrealized gains and losses for the period and unobservable inputs used in determining level 3 fair value measurements will be added, among other changes. | June 1, 2020 | The Company adopted the new standard in the first quarter of fiscal year 2021 and it did not have an impact on the Company's consolidated financial statements. | ||||||||
ASU 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments | This ASU replaces the current incurred loss impairment methodology for financial assets measured at amortized cost with a methodology that reflects expected credit losses and requires consideration of a broader range of reasonable and supportable information, including forecasted information, to develop credit loss estimates. | June 1, 2020 | The Company adopted the new standard in the first quarter of fiscal year 2021 and it did not have an impact on the Company's consolidated financial statements. | ||||||||
| Recently Issued Accounting Pronouncements - Not Yet Applicable or Adopted | |||||||||||
There are no other new accounting pronouncements issued that are expected to have a material impact on our consolidated financial statements.
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Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations.
The following information should be read together with the consolidated financial statements and the notes thereto and other information included elsewhere in this quarterly report on Form 10-Q.
Forward-Looking Statements
This quarterly report on Form 10-Q, including the sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. All statements regarding AngioDynamics’ expected future financial position, results of operations, cash flows, business strategy, budgets, projected costs, capital expenditures, products, competitive positions, growth opportunities, plans and objectives of management for future operations, as well as statements that include the words such as “expects,” “reaffirms,” “intends,” “anticipates,” “plans,” “believes,” “seeks,” “estimates,” or variations of such words and similar expressions, are forward-looking statements. These forward looking statements are not guarantees of future performance and are subject to risks and uncertainties. Investors are cautioned that actual events or results may differ from our expectations. Factors that may affect our actual results achieved include, without limitation, our ability to develop existing and new products, future actions by FDA or other regulatory agencies, results of pending or future clinical trials, the results of ongoing litigation, overall economic conditions, general market conditions, market acceptance, foreign currency exchange rate fluctuations, the effects on pricing from group purchasing organizations and competition, our ability to integrate purchased businesses and other factors including natural disasters and pandemics (such as the scope, scale and duration of the impact of the novel coronavirus, COVID-19). Other risks and uncertainties include, but are not limited to, the factors described from time to time in our reports filed with the SEC.
Although we believe that the assumptions underlying the forward-looking statements contained herein are reasonable, any of the assumptions could be inaccurate and, therefore, there can be no assurance that the forward-looking statements included in this quarterly report on Form 10-Q will prove to be accurate. In light of the significant uncertainties inherent in the forward-looking statements included herein, the inclusion of such information should not be regarded as a representation by us or any other person that our objectives and plans will be achieved. Any forward-looking statements are made pursuant to the Private Securities Litigation Reform Act of 1995 and, as such, speak only as of the date made. AngioDynamics disclaims any obligation to update the forward-looking statements. Investors are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date stated, or if no date is stated, as of the date of this document.
Executive Overview
We design, manufacture and sell a wide range of medical, surgical and diagnostic devices used by professional healthcare providers for vascular access, for the treatment of peripheral vascular disease and for use in oncology and surgical settings. Our devices are generally used in minimally invasive, image-guided procedures. Many of our products are intended to be used once and then discarded, or they may be temporarily implanted for short- or longer-term use.
Our business operations cross a variety of markets. Our financial performance is impacted by changing market dynamics, which have included an emergence of value-based purchasing by healthcare providers, consolidation of healthcare providers, the increased role of the consumer in health care decision-making and an aging population, among others. In addition, our growth is impacted by changes within our sector, such as the merging of competitors to gain scale and influence; changes in the regulatory environment for medical device; and fluctuations in the global economy.
Our sales and profitability growth also depends, in part, on the introduction of new and innovative products, together with ongoing enhancements to our existing products. Expansions to our product offerings are created through internal product development, technology licensing and strategic alliances. We recognize the importance of, and intend to continue to make investments in research and development activities and business development opportunities and feel confident that our existing capital structure and free cash flow generation will allow us to properly fund those activities.
We sell our products in the United States primarily through a direct sales force, and outside the U.S. through a combination of direct sales and distributor relationships. We expect our businesses to grow in both sales and profitability through geographic expansion, market penetration, new product introductions and increasing our direct presence internationally.
The COVID-19 global pandemic may pose significant risks to our business. It is too early to quantify the impact this situation will have on fiscal year 2021 or beyond, but the public health actions being undertaken to reduce spread of the virus are causing and may continue to cause significant disruptions with respect to consumer demand, hospital operating procedures and workflow, our ability to continue to manufacture products and the reliability of our supply chain. Accordingly, management is evaluating the Company’s liquidity position, communicating with and monitoring the actions of our customers and suppliers,
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and reviewing our near-term financial performance as we manage the Company through the uncertainty related to the coronavirus.
In evaluating the operating performance of our business, management focuses on revenue, gross margin, operating income, earnings per share and cash flow from operations. A summary of these key financial metrics for the three and six months ended November 30, 2020 compared to the three and six months ended November 30, 2019 are as follows:
Three months ended November 30, 2020:
•Revenue increased by 4.0% to $72.8 million.
•Gross margin decreased 410 bps to 55.2%.
•Operating loss increased by $1.4 million to $4.8 million.
•Loss per share increased by $0.04 to a loss of $0.11.
Six months ended November 30, 2020:
•Revenue increased by 5.1% to $143.0 million.
•Gross margin decreased 550 bps to 53.1%.
•Operating loss increased by $5.7 million to $10.0 million.
•Loss per share increased by $0.11 to a loss of 0.22.
•Cash provided by operations increased by $6.6 million to $6.0 million.
The ongoing recovery from the COVID-19 pandemic has had a varying impact on each of our three businesses. Our Vascular Interventions & Therapies and Vascular Access businesses performed the strongest of the businesses during the quarter. The number of procedures improved from the COVID-19 lows in the second half of last fiscal year, but remain below pre-COVID-19 levels. Our Oncology business continued to face pressure from COVID-19 related procedure headwinds and a challenging capital spending environment. We continued our commitment to supporting and progressing our key growth initiatives (AngioVac, Auryon and NanoKnife), managing operating expenses and managing our cash and balance sheet.
New Accounting Pronouncements
Information regarding new accounting pronouncements is included in Note 17 to our consolidated financial statements in this Quarterly Report on Form 10-Q.
Results of Operations for the Three Months Ended November 30, 2020 and 2019
For the three months ended November 30, 2020, the Company reported a net loss of $4.3 million, or a loss of $0.11 per diluted share, on net sales of $72.8 million, compared with a net loss of $2.7 million, or a loss of $0.07 per diluted share, on net sales of $70.0 million during the same quarter of the prior year.
Net Sales
Net sales - Net sales are derived from the sale of products and related freight charges, less discounts and returns.
| Three Months Ended | |||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | % Growth | ||||||||||||||
| Net Sales by Global Business Unit | |||||||||||||||||
| Vascular Interventions & Therapies | $ | 33,900 | $ | 31,150 | 8.8% | ||||||||||||
| Vascular Access | 23,930 | 22,784 | 5.0% | ||||||||||||||
| Oncology | 14,940 | 16,069 | (7.0)% | ||||||||||||||
| Total | $ | 72,770 | $ | 70,003 | 4.0% | ||||||||||||
| Net Sales by Geography | |||||||||||||||||
| United States | $ | 60,684 | $ | 55,555 | 9.2% | ||||||||||||
| International | 12,086 | 14,448 | (16.3)% | ||||||||||||||
| Total | $ | 72,770 | $ | 70,003 | 4.0% | ||||||||||||
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For the three months ended November 30, 2020, net sales increased $2.8 million to $72.8 million compared to the same period in the prior year.
Vascular Interventions & Therapies
•Total Vascular Interventions & Therapies sales increased $2.8 million. Auryon, which was acquired as part of the Eximo acquisition in the second quarter of fiscal year 2020, contributed $2.1 million in sales. Additionally, the AngioVac and Core businesses continued their strong performance and grew $1.2 million and $0.6 million, respectively. During the quarter, the Company continued to see strong case volumes in AngioVac, which increased 13% from the prior year. These increases were partially offset by lower volume in Venous products due to fewer elective procedures during the COVID-19 pandemic.
•U.S. Vascular Interventions & Therapies sales increased $3.1 million due to increased case volume in AngioVac, increased Core Peripheral product sales and $2.1 million in sales of Auryon. These increases were partially offset by decreased sales volume in Venous.
•International Vascular Interventions & Therapies sales decreased $0.3 million.
Vascular Access
•Total Vascular Access sales increased $1.1 million due to increased sales across all product lines. BioFlo product lines comprise 49% of overall Vascular Access sales compared to 52% a year ago.
•U.S. Vascular Access sales increased $1.6 million as a result of increased sales across all product lines.
•International Vascular Access sales decreased by $0.5 million.
Oncology
•Total Oncology sales decreased $1.1 million year over year primarily due to lower NanoKnife capital sales of $1.6 million, decreased RadioFrequency Ablation sales of $0.4 million and decreased Balloon product sales of $0.3 million. This was partially offset by increased NanoKnife disposable sales of $0.6 million, Microwave disposable sales of $0.3 million and BioSentry sales of $0.4 million.
•U.S. Oncology sales increased by $0.5 million primarily due to increased NanoKnife disposable sales of $0.7 million, BioSentry sales of $0.4 million and Microwave disposable sales of $0.1 million. This was partially offset by decreased NanoKnife capital sales of $0.4 million and Balloon product sales of $0.3 million due to lower volumes.
•International Oncology sales decreased $1.6 million year over year as a result of decreased RadioFrequency Ablation sales of $0.5 million and NanoKnife capital and disposable sales of $1.2 million.
The Company has discussed the ongoing transformation from a company with a broad portfolio of largely undifferentiated products to a more focused medical technology company that delivers unique and innovative health care solutions. This transformation enables the Company to move away from the mature, lower-growth markets where we have competed in the past by carving out significant space in larger and faster growing markets. As such, the growth in the near to mid-term will be driven by our high technology platforms including AngioVac, Auryon and NanoKnife.
Gross Profit, Operating expenses, and Other income (expense)
| Three Months Ended | |||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | % Change | ||||||||||||||
| Gross profit | $ | 40,174 | $ | 41,544 | (3.3) | % | |||||||||||
| Gross profit % of sales | 55.2 | % | 59.3 | % | |||||||||||||
| Research and development | $ | 9,712 | $ | 7,764 | 25.1 | % | |||||||||||
| % of sales | 13.3 | % | 11.1 | % | |||||||||||||
| Selling and marketing | $ | 20,174 | $ | 20,113 | 0.3 | % | |||||||||||
| % of sales | 27.7 | % | 28.7 | % | |||||||||||||
| General and administrative | $ | 9,219 | $ | 10,994 | (16.1) | % | |||||||||||
| % of sales | 12.7 | % | 15.7 | % | |||||||||||||
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Gross profit - Gross profit consists of net sales less the cost of goods sold, which includes the costs of materials, products purchased from third parties and sold by us, manufacturing personnel, royalties, freight, business insurance, depreciation of property and equipment and other manufacturing overhead, exclusive of intangible amortization.
Gross profit decreased by $1.4 million compared to the prior year. The decrease is primarily attributable to the following:
•Sales volume positively impacted gross profit by $1.5 million year over year.
•Net productivity negatively impacted gross profit by $2.6 million primarily as a result of under absorption of $1.2 million and increased start-up costs related to the Auryon launch of $1.2 million. The under absorption in manufacturing operations was due to the fact that the Company has maintained staffing levels during the COVID-19 global pandemic to mitigate risk, along with a focus on working capital management through inventory reduction.
•Mix negatively impacted gross margin by $0.3 million as a result of decreased NanoKnife capital sales. This was partially offset by increased AngioVac sales.
Research and development expenses - Research and development (“R&D”) expenses include internal and external costs to develop new products, enhance existing products, validate new and enhanced products, and manage clinical, regulatory and medical affairs.
R&D expense increased $1.9 million compared to the prior year. The increase is primarily attributable to the following:
•Research and development expenses related to the AngioVac platform expansion, the NanoKnife DIRECT© study and the Pathfinder study increased $1.8 million along with $0.7 million of expenses related to Auryon.
•Outside consultant spend and other expenses decreased $0.5 million along with decreased travel expenses of $0.2 million.
Sales and marketing expenses - Sales and marketing (“S&M”) expenses consist primarily of salaries, commissions, travel and related business expenses, attendance at medical society meetings, product promotions and marketing activities.
S&M expense increased $0.1 million compared to the prior year. The increase is primarily attributable to the following:
•Travel expenses decreased $1.4 million due to less travel as a result of the COVID-19 pandemic. In addition, tradeshow and other expenses decreased $1.3 million due to the cancellation of events.
•Expenses related to the build-out of the Auryon sales and marketing teams to prepare for full product launch of $2.6 million and increased other expenses of $0.2 million.
General and administrative expenses - General and administrative (“G&A”) expenses include executive management, finance, information technology, human resources, business development, legal, and the administrative and professional costs associated with those activities.
G&A expense decreased $1.8 million compared to the prior year. The decrease is primarily attributable to the following:
•Legal expenses decreased $1.4 million.
•Travel expenses decreased $0.3 million due to less travel as a result of the COVID-19 pandemic.
| Three Months Ended | |||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | $ Change | ||||||||||||||
| Amortization of intangibles | $ | 4,593 | $ | 4,530 | $ | 63 | |||||||||||
| Change in fair value of contingent consideration | $ | 184 | $ | 145 | $ | 39 | |||||||||||
| Acquisition, restructuring and other items, net | $ | 1,128 | $ | 1,421 | $ | (293) | |||||||||||
| Other income (expense), net | $ | (337) | $ | 121 | $ | (458) | |||||||||||
Amortization of intangibles - Represents the amount of amortization expense that was taken on intangibles assets held by the Company.
•Amortization expense remained consistent with the prior year.
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Change in fair value of contingent consideration - Represents changes in contingent consideration driven by changes to estimated future payments on earn-out liabilities created through acquisitions and amortization of present value discounts on long-term contingent consideration.
•The change in the fair value of the contingent consideration is the normal amortization of the present value of the Eximo contingent consideration.
Acquisition, restructuring and other items, net - Represents costs associated with mergers and acquisitions, restructuring expenses, legal costs that are related to litigation that is not in the ordinary course of business, legal settlements and other one-time items.
Acquisition, restructuring and other items, net decreased by $0.3 million compared to the prior year. The decrease is primarily attributable to the following:
•Legal expense, related to litigation that is outside of the normal course of business, of $1.2 million was recorded in the second quarter of fiscal year 2021 compared to $0.7 million in the prior year.
•There was no M&A expense incurred in the second quarter of fiscal year 2021 compared to $0.4 million in the prior year.
•In the second quarter of fiscal year 2021, the Company incurred $0.1 million of expense to move manufacturing facilities as a result of the sale of the Fluid Management business compared to $0.7 million in the prior year.
•As part of the sale of the Fluid Management business, the Company entered into a transition services agreement with Medline for certain legal, human resource, tax, accounting and information technology services from the Company for a period not to exceed 24 months. As a result of the transition services agreement, the Company invoiced Medline $0.3 million in the second quarter of fiscal year 2021 compared to $0.6 million in the prior year.
•Other expenses of $0.2 million in the second quarter of fiscal year 2021 consists of severance associated with organizational changes, compared to $0.3 million in the prior year.
Other income (expense), net - Other expenses include interest expense, foreign currency impacts, bank fees, and amortization of deferred financing costs.
•The increase in other expense from the prior year of $0.5 million is primarily due to increased interest expense of $0.1 million for the $40.0 million outstanding on the Revolving Facility at the end of the second quarter of fiscal year 2021 compared to no debt outstanding in the prior year along with decreased interest income of $0.1 million. In addition, there was $0.2 million in unrealized foreign exchange losses at the end of the second quarter of fiscal year 2021.
Income Tax Benefit
| Three Months Ended | |||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | |||||||||
| Income tax benefit | $ | (0.9) | $ | (0.6) | |||||||
| Effective tax rate including discrete items | 17.5 | % | 17.1 | % | |||||||
Our effective tax rate including discrete items for the three month periods ended November 30, 2020 and 2019 was 17.5% and 17.1%, respectively. In fiscal year 2021, the Company’s effective tax rate differs from the U.S. statutory rate primarily due to the impact of the valuation allowance, foreign taxes, and other non-deductible permanent items (such as non-deductible meals and entertainment, Section 162(m) excess compensation and non-deductible share based compensation).
The estimated annual effective tax rate, however, prior to discrete items was 16.1% in the second quarter of fiscal year 2021, as compared to 13.2% for the same period in fiscal year 2020.
Results of Operations for the Six Months Ended November 30, 2020 and 2019
For the six months ended November 30, 2020, the Company reported a net loss of $8.5 million, or a loss of $0.22 per diluted share, on net sales of $143.0 million, compared with a net loss of $4.0 million, or a loss of $0.11 per diluted share, on net sales of $136.0 million during the prior year.
Net Sales
Net sales - Net sales are derived from the sale of products and related freight charges, less discounts and returns.
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| Six Months Ended | |||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | % Growth | ||||||||||||||
| Net Sales by Global Business Unit | |||||||||||||||||
| Vascular Interventions & Therapies | $ | 63,757 | $ | 60,063 | 6.2% | ||||||||||||
| Vascular Access | 52,035 | 45,943 | 13.3% | ||||||||||||||
| Oncology | 27,194 | 30,039 | (9.5)% | ||||||||||||||
| Total | $ | 142,986 | $ | 136,045 | 5.1% | ||||||||||||
| Net Sales by Geography | |||||||||||||||||
| United States | $ | 114,792 | $ | 108,492 | 5.8% | ||||||||||||
| International | 28,194 | 27,553 | 2.3% | ||||||||||||||
| Total | $ | 142,986 | $ | 136,045 | 5.1% | ||||||||||||
For the six months ended November 30, 2020, net sales increased $6.9 million to $143.0 million compared to the same period in the prior year.
Vascular Interventions & Therapies
•Total Vascular Interventions & Therapies sales increased $3.7 million. Auryon, which was acquired as part of the Eximo acquisition in the second quarter of fiscal year 2020, contributed $3.2 million in sales. Additionally, the AngioVac and Core businesses continued their strong performance and grew $3.0 million and $0.6 million, respectively. The Company continued to see strong case volumes in AngioVac, which increased 26% from the prior year. These increases were partially offset by lower volume in Venous products due to fewer elective procedures during the COVID-19 pandemic.
•U.S. Vascular Interventions & Therapies sales increased $4.4 million due to increased case volume in AngioVac, increased Core Peripheral product sales and $3.2 million in sales of Auryon. These increases were partially offset by decreased sales volume in Venous.
•International Vascular Interventions & Therapies sales decreased $0.7 million.
Vascular Access
•Total Vascular Access sales increased $6.1 million due to increased sales of PICCs and Midlines of $3.6 million and $2.7 million, respectively. These increases are the result of a large order in the United Kingdom related to the COVID-19 pandemic for $5.2 million in the first quarter of fiscal year 2021 along with the distribution agreement with MedComp. These increases were offset by decreased sales in Ports. BioFlo product lines comprise 54% of overall Vascular Access sales compared to 51% a year ago.
•U.S. Vascular Access sales increased $1.5 million primarily due to increased Midline and PICC sales of $0.6 million and $0.8 million, respectively.
•International Vascular Access sales increased by $4.6 million primarily as a result of a large order in the United Kingdom related to the COVID-19 pandemic for $5.2 million. This was partially offset by decreased PICC sales in Latin America of $0.8 million.
Oncology
•Total Oncology sales decreased $2.8 million year over year primarily due to lower NanoKnife capital sales of $2.4 million, decreased RadioFrequency Ablation sales of $1.0 million and decreased Balloon product sales of $0.9 million. This was partially offset by increased Microwave disposable sales of $0.7 million, NanoKnife disposable sales of $0.5 million and BioSentry sales of $0.8 million.
•U.S. Oncology sales increased by $0.4 million primarily due to increased NanoKnife disposable sales of $0.8 million, BioSentry sales of $0.8 million and Microwave disposable sales of $0.5 million. This was partially offset by decreased NanoKnife capital sales of $0.5 million and Balloon product sales of $0.9 million.
•International Oncology sales decreased $3.2 million year over year as a result of decreased RadioFrequency Ablation sales of $1.2 million and NanoKnife capital and disposable sales of $2.1 million.
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Gross Profit, Operating expenses, and Other income (expense)
Six Months Ended | |||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | % Change | ||||||||||||||
| Gross profit | $ | 75,938 | $ | 79,761 | (4.8) | % | |||||||||||
| Gross profit % of sales | 53.1 | % | 58.6 | % | |||||||||||||
| Research and development | $ | 18,721 | $ | 14,055 | 33.2 | % | |||||||||||
| % of sales | 13.1 | % | 10.3 | % | |||||||||||||
| Selling and marketing | $ | 37,879 | $ | 39,493 | (4.1) | % | |||||||||||
| % of sales | 26.5 | % | 29.0 | % | |||||||||||||
| General and administrative | $ | 17,776 | $ | 19,448 | (8.6) | % | |||||||||||
| % of sales | 12.4 | % | 14.3 | % | |||||||||||||
Gross profit - Gross profit consists of net sales less the cost of goods sold, which includes the costs of materials, products purchased from third parties and sold by us, manufacturing personnel, royalties, freight, business insurance, depreciation of property and equipment and other manufacturing overhead, exclusive of intangible amortization.
Gross profit decreased by $3.8 million compared to the prior year. The decrease is primarily attributable to the following:
•Sales volume positively impacted gross profit by $4.5 million year over year.
•Net productivity negatively impacted gross profit by $5.5 million primarily as a result of under absorption of $3.7 million and start-up costs related to the Auryon launch of $1.8 million. The under absorption in manufacturing operations was due to the fact that the Company has maintained staffing levels during the COVID-19 global pandemic to mitigate risk, along with a focus on working capital management through inventory reduction.
•Mix negatively impacted gross margin by $1.7 million as a result of the large order in the United Kingdom for lower gross margin products and decreased NanoKnife capital sales. This was partially offset by increased AngioVac sales.
•A reserve for recalled products of $0.5 million and amortization of prior year capitalized variances of $0.4 million negatively impacted gross margin.
Research and development expenses - Research and development (“R&D”) expenses include internal and external costs to develop new products, enhance existing products, validate new and enhanced products, and manage clinical, regulatory and medical affairs.
R&D expense increased $4.7 million compared to the prior year. The increase is primarily attributable to the following:
•Research and development expenses related to the AngioVac platform expansion, the NanoKnife DIRECT© study and the Pathfinder study increased $3.4 million along with $2.0 million of expenses related to Auryon.
•Outside consultant spend and other expenses decreased $0.5 million along with decreased travel expenses of $0.2 million.
Sales and marketing expenses - Sales and marketing (“S&M”) expenses consist primarily of salaries, commissions, travel and related business expenses, attendance at medical society meetings, product promotions and marketing activities.
S&M expense decreased $1.6 million compared to the prior year. The decrease is primarily attributable to the following:
•Travel expenses decreased $2.8 million due to less travel as a result of the COVID-19 pandemic. In addition, tradeshow and other expenses decreased $3.1 million due to the cancellation of events.
•Compensation and benefits decreased approximately $0.4 million which is primarily the result of open roles.
•Expenses related to the build-out of the Auryon sales and marketing teams to prepare for full product launch of $4.7 million.
General and administrative expenses - General and administrative (“G&A”) expenses include executive management, finance, information technology, human resources, business development, legal, and the administrative and professional costs associated with those activities.
G&A expense decreased $1.7 million compared to the prior year. The decrease is primarily attributable to the following:
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•Legal expenses decreased $1.2 million.
•Travel expenses decreased $0.3 million due to less travel as a result of the COVID-19 pandemic.
| Six Months Ended | |||||||||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | $ Change | ||||||||||||||
| Amortization of intangibles | $ | 9,546 | $ | 8,398 | $ | 1,148 | |||||||||||
| Change in fair value of contingent consideration | $ | (473) | $ | (303) | $ | (170) | |||||||||||
| Acquisition, restructuring and other items, net | $ | 2,447 | $ | 2,921 | $ | (474) | |||||||||||
| Other expense, net | $ | (28) | $ | (442) | $ | 414 | |||||||||||
Amortization of intangibles - Represents the amount of amortization expense that was taken on intangibles assets held by the Company.
•Amortization expense increased $1.1 million compared to the prior year as a result of the Eximo Medical and C3 Wave tip location acquisitions, which increased intangible assets by $60.3 million and $9.4 million, respectively. These additions resulted in additional amortization expense of $2.4 million.
Change in fair value of contingent consideration - Represents changes in contingent consideration driven by changes to estimated future payments on earn-out liabilities created through acquisitions and amortization of present value discounts on long-term contingent consideration.
•The change from the prior year is due to a decision to no longer pursue the final RadiaDyne technical milestone, which resulted in a reduction in the liability of $0.8 million. This reduction in the fair value was offset by normal amortization of the present value of the Eximo contingent consideration recorded in the second quarter of fiscal year 2020.
Acquisition, restructuring and other items, net - Represents costs associated with mergers and acquisitions, restructuring expenses, legal costs that are related to litigation that is not in the ordinary course of business, legal settlements and other one-time items.
Acquisition, restructuring and other items, net decreased by $0.5 million compared to the prior year. The decrease is primarily attributable to the following:
•Legal expense, related to litigation that is outside of the normal course of business, of $2.0 million was recorded in fiscal year 2021 compared to $1.4 million in the prior year.
•There was no M&A expense incurred in the second quarter of fiscal year 2021 compared to $0.6 million in the prior year.
•In fiscal year 2021, the Company incurred $0.4 million of expense to move manufacturing facilities as a result of the sale of the Fluid Management business compared to $1.5 million in the prior year.
•As part of the sale of the Fluid Management business, the Company entered into a transition services agreement with Medline for certain legal, human resource, tax, accounting and information technology services from the Company for a period not to exceed 24 months. As a result of the transition services agreement, the Company invoiced Medline $0.7 million in fiscal year 2021 compared to $1.3 million in the prior year.
•Other expenses of $0.8 million in consists of severance associated with organizational changes, compared to $0.8 million in the prior year.
Other expense, net - Other expenses include interest expense, foreign currency impacts, bank fees, and amortization of deferred financing costs.
•The decrease in other expense from the prior year of $0.4 million is primarily due to foreign currency unrealized gains of $0.5 million and the prior year write-off of deferred financing fees associated with the old Credit Facility of $0.6 million. This was partially offset by increased interest expense of $0.2 million for the $40.0 million outstanding on the Revolving Facility at the end of the second quarter of fiscal year 2021 compared to no debt outstanding in the prior year. In addition, interest income decreased by $0.3 million.
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Income Tax Benefit
| Six Months Ended | |||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | |||||||||
| Income tax benefit | $ | (1.5) | $ | (0.7) | |||||||
| Effective tax rate including discrete items | 14.5 | % | 14.5 | % | |||||||
Our effective tax rate including discrete items for the six month periods ended November 30, 2020 and 2019 was 14.5% and 14.5%, respectively. In fiscal year 2021, the Company’s effective tax rate differs from the U.S. statutory rate primarily due to the impact of the valuation allowance, foreign taxes, and other non-deductible permanent items (such as non-deductible meals and entertainment, Section 162(m) excess compensation and non-deductible share based compensation).
The estimated annual effective tax rate, however, prior to discrete items was 16.1% in the second quarter of fiscal year 2021, as compared to 13.2% for the same period in fiscal year 2020.
Liquidity and Capital Resources
We are continuously and critically reviewing our liquidity and anticipated capital requirements in light of the significant uncertainty created by the COVID-19 global pandemic. We believe that our current cash on hand and availability under our revolving credit facility provide sufficient liquidity to meet our anticipated needs for capital for at least the next 12 months. We are closely monitoring receivables and payables. In addition, we believe that our recently increased inventory levels provide additional risk mitigation in the event we incur a manufacturing disruption.
Our cash and cash equivalents totaled $58.0 million as of November 30, 2020, compared with $54.4 million as of May 31, 2020. As of November 30, 2020 and May 31, 2020, total debt outstanding related to the Revolving Facility was $40.0 million. The fair value of contingent consideration liability as of November 30, 2020 and May 31, 2020, was $15.2 million and $15.6 million, respectively.
The table below summarizes our cash flows:
| Six Months Ended | |||||||||||
| (in thousands) | Nov 30, 2020 | Nov 30, 2019 | |||||||||
| Cash provided by (used in): | |||||||||||
| Operating activities | $ | 6,023 | $ | (597) | |||||||
| Investing activities | (3,185) | (50,124) | |||||||||
| Financing activities | 481 | (135,749) | |||||||||
| Effect of exchange rate changes on cash and cash equivalents | 271 | 76 | |||||||||
| Net change in cash and cash equivalents | $ | 3,590 | $ | (186,394) | |||||||
Cash flows consisted of the following:
Cash provided by (used in) operating activities
Six months ended November 30, 2020:
•Net loss of $8.5 million plus the non-cash items, primarily driven by depreciation and amortization and share based compensation, along with the changes in working capital below, contributed to cash provided by operations of $6.0 million.
•Working capital was favorably impacted by decreased inventory on hand of $10.5 million. This was partially offset by increased accounts receivable of $2.3 million and decreased accounts payable and accrued liabilities of $3.8 million.
Six months ended November 30, 2019:
•Net loss of $4.0 million plus the non-cash items, primarily driven by depreciation and amortization, contributed to cash used in operations of $0.6 million.
•Working capital was negatively impacted by increased inventory on hand of $10.0 million and decreased accounts payable and accrued liabilities of $8.8 million. Accounts receivable had a favorable impact on working capital as a result of the sale of the Fluid Management business.
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Cash used in investing activities
Six months ended November 30, 2020 and 2019:
•$3.2 million in fixed asset additions versus $4.0 million in the prior year.
•$45.8 million cash payment to acquire Eximo Medical Ltd. in the second quarter of fiscal year 2020.
Cash provided by (used in) financing activities
Six months ended November 30, 2020 and 2019:
•$132.5 million repayment of long-term debt in conjunction with the new Credit Agreement that was entered into at the beginning of the first quarter of fiscal year 2020. Refer to Note 7 of the financial statements.
•$0.5 million of proceeds from stock option and ESPP activity versus $1.3 million in outlays in the prior year.
•$1.2 million payment on earn-out liabilities in the prior year.
On June 3, 2019 and in connection with the completion of the Fluid Management divestiture, the Company repaid all amounts outstanding under its existing Credit Agreement and entered into a new Credit Agreement. The Credit Agreement provides for a $125.0 million secured Revolving Facility, which includes an uncommitted expansion feature that allows the Company to increase the total revolving commitments and/or add new tranches of term loans in an aggregate amount not to exceed $75.0 million. The Credit Agreement includes customary representations, warranties and covenants, and acceleration, indemnity and events of default provisions, including, among other things, two financial covenants. One financial covenant requires us to maintain a fixed charge coverage ratio of not less than 1.25 to 1.00. The other financial covenant requires us to maintain a total leverage ratio of not greater than 3.00 to 1.00. The total leverage ratio is based upon our trailing twelve months total adjusted EBITDA (as defined in the Credit Agreement). The amount that we can borrow under our Credit Agreement is directly based on our leverage ratio.
On December 17, 2019, the Company made a $15.0 million draw on the Revolving Facility as part of the acquisition of the C3 Wave tip location asset from Medical Components Inc. that is described Note 2 to the financial statements. In the fourth quarter of fiscal year 2020, the Company made an additional $25.0 million draw on the Revolving Facility. In December 2020, a payment of $10.0 million was made on the Revolving Facility. We believe that our current cash balance, together with cash generated from operations and access to our Revolving Facility, will provide sufficient liquidity to meet our anticipated needs for capital for at least the next 12 months. If we seek to make significant acquisitions of other businesses or technologies in the future for cash, we may require external financing.
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Item 3. Quantitative and Qualitative Disclosures About Market Risk.
Foreign Currency Exchange Rate Risk
We are exposed to market risk from changes in currency exchange rates, as well as interest rate fluctuations on our credit facility and investments that could impact our results of operations and financial position.
We transact sales in currencies other than the U.S. Dollar, particularly the Euro, British pound and Canadian dollar. Approximately 6% of our sales in fiscal year 2021 were denominated in foreign currencies. We do not have expenses denominated in foreign currencies at the level of our sales and as a result, our profitability is exposed to currency fluctuations. When the U.S. Dollar strengthens, our sales and gross profit will be negatively impacted. In addition, we have assets and liabilities denominated in non-functional currencies which are remeasured at each reporting period, with the offset to changes presented as a component of Other (Expenses) Income. Significant non-functional balances include accounts receivable due from a sub-section of our international customers.
Interest Rate Risk
On June 3, 2019, we entered into the Credit Agreement which provides for a $125 million Revolving Facility. Interest on the facility will be based, at the Company’s option, on a base rate of LIBOR plus an applicable margin tied to the Company’s total leverage ratio and having ranges between 0.25% and 0.75% for base rate loans and between 1.25% and 1.75% for LIBOR loans. In the event of default, the interest rate may be increased by 2.0%. As of November 30, 2020 there was $40.0 million outstanding on the Revolving Facility.
Concentration of Credit Risk
Financial instruments, which potentially subject the Company to significant concentrations of credit risk, consist primarily of cash and cash equivalents, our credit facility and trade accounts receivable.
The Company maintains cash and cash equivalents at various institutions and performs periodic evaluations of the relative credit standings of these financial institutions to ensure their credit worthiness. In addition, the Credit Agreement is structured across five above investment grade banks. The Company has the ability to draw equally amongst the five banks which limits the concentration of credit risk of one institution.
Concentration of credit risk with respect to trade accounts receivable is limited due to the large number of customers that purchase products from the Company. No single customer represents more than 10% of total sales. The Company monitors the creditworthiness of its customers to which it grants credit terms in the normal course of business. Although the Company does not currently foresee a significant credit risk associated with the outstanding accounts receivable, repayment is dependent upon the financial stability of our customers.
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Item 4. Controls and Procedures.
Evaluation of disclosure controls and procedures
As of the end of the period covered by this report, our management, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of the design and operation of our disclosure controls and procedures pursuant to Rule 13a-15(b) of the Securities Exchange Act of 1934, as amended. Based on that evaluation, the Chief Executive Officer and the Chief Financial Officer concluded that our disclosure controls and procedures as of the end of the period covered by this report were effective to provide reasonable assurance that the information required to be disclosed by us in reports filed under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms and is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
Changes in Internal Control over Financial Reporting
There was no change in our internal control over financial reporting for the fiscal quarter ended November 30, 2020 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
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AngioDynamics, Inc. and Subsidiaries
PART II: OTHER INFORMATION
Item 1. Legal Proceedings.
The Company is involved in various legal proceedings, including commercial, intellectual property, product liability, and regulatory matters of a nature considered normal for its business. The Company accrues for amounts related to these matters if it is probable that a liability has been incurred, and an amount can be reasonably estimated. The Company discloses such matters when there is at least a reasonable possibility that a material loss may have been incurred. However, the Company cannot predict the outcome of any litigation or the potential for future litigation.
C.R. Bard, Inc. v. AngioDynamics, Inc.
On January 11, 2012, C.R. Bard, Inc. (“Bard”) filed a suit in the United States District Court of Utah claiming certain of the Company's implantable port products infringe on three U.S. patents held by Bard (the "Utah Action"). Bard’s complaint sought unspecified damages and other relief. The Company filed petitions for reexamination in the US Patent and Trademark Office ("USPTO") seeking to invalidate all three patents asserted by Bard in the litigation. The Company's petitions were granted and 40 of Bard's 41 patent claims were rejected and, following further proceedings, the Patent Office issued a Final Rejection of all 40 claims subject to reexamination. Thereafter, Bard filed appeals to the USPTO Board of Appeals and Interferences for all three reexaminations which were decided as follows: For US Patent No. 7,785,302, the rejections of six of the ten claims under reexamination were affirmed, but were reversed on four of the ten claims. For U.S. Patent No. 7,959,615 the rejections of eight of the ten claims under reexamination were affirmed but the rejections of the other two of the ten claims were reversed. In the third, for U.S. Patent No. 7,947,022 the rejections of all twenty claims under reexamination were affirmed. Thereafter, Bard sought Rehearing in all three appeals and the Company sought Rehearing in the ‘302 and ‘615 appeals. The USPTO denied all three Rehearing Requests, but modified its characterization of one prior art reference for the ‘302 and ‘022 decisions.
Bard filed appeals to the Federal Circuit Court of Appeals in all three reexams and the Company Cross-Appealed for the ‘302 and the ‘615 reexams. MedComp also filed an Amicus Brief in support of the Company on November 22, 2017. Meanwhile, on July 12, 2017 Bard assigned the asserted patents to Bard Peripheral Vascular, Inc. (“BPV”) which was added as co-Appellant before the Federal Circuit and as a co-Plaintiff in the Utah action. An oral hearing was held on September 5, 2018 and the Court rendered its decision on September 28, 2018, affirming that claims 1-5 and 10 of the ‘615 patent were invalid, but that claims 6-7 of the 615 patent and claims 1-4 of the 302 patent were valid over the prior art references considered in the Reexamination proceedings. The Federal Circuit also reversed the PTAB’s claim construction ruling and remanded for consideration of obviousness for the remaining claims under the new claim construction ruling and for further findings with respect to whether one of the asserted references qualified as a printed publication. On January 28, 2019, on remand, the USPTO reversed the rejections of the ‘302 claims 1-10, ‘022 claims 1-20 and ‘615 claims 8-9. The USPTO has since issued Inter Partes Reexamination Certificates for the ‘302 Patent for the ‘022 patent and for the ‘615 patent. The Company thereafter filed a Motion to Unstay the Utah Case and that motion was granted. On November 4, 2019 the Court held a joint Status Conference among the Company’s Utah Action and two other cases filed by Bard on the same patents against MedComp and Smiths. The Court set a schedule for defendant's Motions to Dismiss or Transfer. The Company filed its motion on November 25, 2019; and Bard filed a responsive brief and a motion for venue discovery on December 9, 2019. The Company filed a responsive brief on December 16, 2019 and Bard filed a reply on December 23, 2019. On February 27, 2020, the Court referred all non-dispositive motions to the presiding Magistrate and on March 3, 2020 the Court granted Bard’s Motion for Venue Discovery and denied the Company’s transfer motion without prejudice to re-filing after completion of the venue discovery, but no later than June 30, 2020. Following venue discovery, AngioDynamics re-filed its Motion to Dismiss or Transfer on June 30, 2020. Bard filed an opposition brief on July 28, 2020, and the Company filed a subsequent reply. The Court granted AngioDynamics’s Motion to Transfer on November 16, 2020. The case is currently pending in the District of Delaware and a scheduling conference has been set for January 21, 2021.The Company believes these claims are without merit and intends to defend them vigorously. The Company has not recorded an expense related to the outcome of this litigation because it is not yet possible to determine if a potential loss is probable nor reasonably estimable.
On March 10, 2015, Bard and BPV filed suit in the United States District Court for the District of Delaware (the “Delaware Action") claiming certain of the Company's implantable port products infringe on three other U.S. patents held by Bard, which are different from those asserted in the Utah action. Bard's complaint seeks unspecified damages and other relief. On June 1, 2015, the Company filed two motions in response to Bard’s Complaint - one sought transfer to the District of Utah where the Utah Action is currently pending, and the other sought dismissal of the entire complaint on grounds that none of the claims in the asserted patents is directed to patent eligible subject matter under Section 101 of the Patent Statute and in light of recent authority from the U. S. Supreme Court.
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On January 12, 2016, the Court issued a decision denying both motions. A Markman hearing was held on March 10, 2017 and the Court issued its Claim Construction Order on May 19, 2017. On May 19, 2017, Bard served its Final Infringement Contentions and on June 2, 2017, the Company served its Final Invalidity Contentions.
On October 20, 2017, the scheduling order for the case was amended to, among other things, set a trial date commencing July 23, 2018. The parties completed Expert Discovery in January 2018 and completed briefing on their respective case dispositive motions on April 27, 2018. On June 26, 2018, the Court denied all case dispositive motions, ruling that issues of material fact remained in dispute. On July 9, 2018, the Court continued the trial until March 2019. On January 9, 2019 the Court held a further claim construction hearing to resolve two outstanding claim construction issues prior to trial. A Report and Recommendation (by Magistrate-Judge Fallon) was issued on February 11, 2019 and entered by the Court on February 28, 2019. Jury selection was held on Friday March 1, 2019 and trial began on March 4, 2019. On day four of the jury trial, at the close of C.R. Bard’s case, the Court granted the Company's oral motion for judgment as a matter of law under rule 50(a) as well as its motions for summary judgement on the grounds that the asserted patents are invalid, ineligible, not infringed and not willfully infringed. On April 5, 2019, Bard filed a precautionary Notice of Appeal to the Federal Circuit. On April 26, 2019, the District Court issued a Memorandum and Order confirming the grant of judgment in the Company’s favor of patent ineligibility, non-infringement, patent invalidity and no willful infringement. Meanwhile, on May 10, 2019, the Company filed a Motion for Attorney fees and non-taxable expenses under 35 USC Sec. 285. On May 21, 2019, the Court issued a Memorandum and Order which, inter alia, stayed proceedings on the Company’s fee Motion and the Company’s equitable claims pending appeal; and entered Final Judgment on May 21, 2019 as well. Bard filed a second Notice of Appeal on May 23, 2019. Both appeals have since been consolidated and Bard’s opening brief was filed on September 27, 2019; the Company's answering brief was filed on January 15, 2020; and Bard’s reply brief was filed on March 4, 2020. A hearing was held on June 1, 2020, and the court issued its decision on November 10, 2020. The Federal Circuit reversed the judgment in part with respect to Section 101, and vacated and remanded the trial court’s invalidity and non-infringement judgments. The Company filed a combined Petition for rehearing and rehearing en banc on December 10, 2020 which remains pending. The Company maintains its belief that Bard’s claims are without merit. The Company has not recorded an expense related to the outcome of this litigation because it is not yet possible to determine if a potential loss is probable nor reasonably estimable.
AngioDynamics, Inc. v. C.R. Bard, Inc.
On May 30, 2017, the Company commenced an action in the United States District Court for the Northern District of New York entitled AngioDynamics, Inc. v. C.R. Bard, Inc. and Bard Access Systems, Inc. (“Bard”). In this action, the Company alleges that Bard has illegally tied the sales of its tip location systems to the sales of its PICCs. The Company alleges that this practice violates the federal antitrust laws and has had, and continues to have, an anti-competitive effect in the market for PICCs. The Company seeks both monetary damages and injunctive relief. Bard moved to dismiss on September 8, 2017. On August 6, 2018 the court denied Bard’s motion in its entirety. Discovery is largely complete, summary judgment, including all reply briefs, were fully briefed in October 2020, and the case will subsequently proceed to trial thereafter.
Merz North America Settlement
On May 16, 2019, Merz North America, Inc. (“Merz”) commenced an action in the United States District Court for the Southern District of New York entitled Merz North America, Inc. v. AngioDynamics, Inc. In this action, Merz alleged breach of contract against AngioDynamics based on a March 1, 2016 Distribution Agreement. On June 28, 2019, AngioDynamics reached a settlement with Merz. AngioDynamics made a lump-sum payment of $2.5 million to Merz in return for dismissal of the case with prejudice during the first quarter of fiscal year 2020. The case was subsequently dismissed.
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Item 1A. Risk Factors.
In addition to information set forth in this report, you should carefully consider the factors discussed in “Part I, Item 1A. Risk Factors” of our annual report on Form 10-K for our fiscal year ended May 31, 2020 which set forth information relating to important risks and uncertainties that could materially adversely affect our business, financial condition or operating results. You should review and consider such Risk Factors in making any investment decision with respect to our securities. An investment in our securities continues to involve a high degree of risk. There have been no material changes to the risk factors previously disclosed in our annual report on Form 10-K.
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Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
The following table provides information with respect to the shares of the Company’s common stock repurchased during the six months ended November 30, 2020:
| Issuer Purchases of Equity Securities | |||||||||||||||||||||||
| Total Number of Shares Purchased | Average Price Paid per Share | Total Number of Shares Purchased as Part of Publicly Announced Programs (1) | Maximum Approximate Dollar Value of Shares that May Yet Be Purchased Under Plans or Programs (1) | ||||||||||||||||||||
| September 1, 2020 - September 30, 2020 | — | $ | — | — | $ | — | |||||||||||||||||
| October 1, 2020 - October 31, 2020 | 849 | $ | 11.24 | — | $ | — | |||||||||||||||||
| November 1, 2020 - November 30, 2020 | — | $ | — | — | $ | — | |||||||||||||||||
| Total | 849 | $ | 11.24 | — | — | ||||||||||||||||||
(1)These amounts are not applicable as the Company currently does not have a share repurchase program in effect.
Item 3. Defaults on Senior Securities.
None.
Item 4. Mine Safety Disclosures.
None.
Item 5. Other Information.
None.
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Item 6
| EXHIBIT INDEX | Incorporated by Reference | ||||||||||
| No. | Description | Form | Filing Date | ||||||||
| 10.1.9 | DEF 14A | September 3, 2020 | |||||||||
| 10.2 | DEF 14A | September 3, 2020 | |||||||||
| 10.4.6 | |||||||||||
| 31.1 | |||||||||||
| 31.2 | |||||||||||
| 32.1 | |||||||||||
| 32.2 | |||||||||||
| 101.INS | The instance document does not appear in the interactive data file because its XBRL tags are embedded within the inline XBRL document | ||||||||||
| 101.SCH | XBRL Schema Document | ||||||||||
| 101.CAL | XBRL Calculation Linkbase Documents | ||||||||||
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase Document | ||||||||||
| 101.LAB | XBRL Labels Linkbase Documents | ||||||||||
| 101.PRE | XBRL Presentation Linkbase Documents | ||||||||||
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| ANGIODYNAMICS, INC. | ||||||||||||||
| (Registrant) | ||||||||||||||
| Date: | January 8, 2021 | / S / JAMES C. CLEMMER | ||||||||||||
James C. Clemmer, President, Chief Executive Officer (Principal Executive Officer) | ||||||||||||||
| Date: | January 8, 2021 | / S / STEPHEN A. TROWBRIDGE | ||||||||||||
| Stephen A. Trowbridge, Executive Vice President, Chief Financial Officer (Principal Financial and Accounting Officer) | ||||||||||||||
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PERFORMANCE SHARE AWARD AGREEMENT
This Performance Share Award Agreement (this “Agreement”), dated as of the [ ] day of [ ], 2020 (the “Grant Date”), is between AngioDynamics, Inc., a Delaware corporation (“AngioDynamics” or the “Company”), and the “Participant,” an employee of the Company or any of its Affiliates or Subsidiaries and whose name appears on the signature page hereto. All capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in Appendix A to this Agreement or the AngioDynamics 2004 Stock and Incentive Award Plan, as amended (the “Plan”), as applicable.
Overview of Your Award
Target Amount of Performance Shares: [ ] shares.
Performance Period: June 1, 2020 to May 31, 2023.
Performance Year 1: June 1, 2020 through May 31, 2021.
Performance Year 2: June 1, 2021 through May 31, 2022.
Performance Year 3: June 1, 2022 through May 31, 2023.
Peer Group: Set forth on Appendix A.
1. Grant and Acceptance of Performance Shares. Effective as of the Grant Date, the Company hereby grants to the Participant a Performance Share Award (the “Performance Shares”), subject to the terms and conditions set forth in this Agreement and the Plan, with respect to [TARGET AMOUNT] shares (the “Target Amount”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). This grant of Performance Shares shall not confer any right to the Participant (or any other participant) to be granted any Performance Shares in the future.
2. Eligibility Conditions upon Performance Shares. The Participant hereby acknowledges that the vesting of any of the Performance Shares (and delivery of shares of Common Stock with respect to any such vested Performance Shares) is subject to certain eligibility, performance and other conditions set forth herein. Except as otherwise provided in Section 7 of this Agreement, all shares of Common Stock in respect of Performance Shares that vest pursuant to the terms of this Agreement and the Plan shall be issued to the Participant as soon as practicable (and in all events within sixty (60) days) after the end of the Performance Period, and no shares of Common Stock in settlement of vested Performance Shares shall be issued to the Participant prior to the end of the Performance Period.
1
3. Satisfaction of Performance-Based Conditions. Subject to Sections 5, 6, 7(a) and 7(b) of this Agreement, the Performance Shares will be eligible to vest if and only if the performance conditions established in this Section 3 with respect to such Performance Shares are satisfied. Vesting of Performance Shares is based upon the performance of the Company with respect to the performance targets (as set forth below) for each Performance Year, subject to modification based on the Company’s achieved Relative TSR, each as more fully provided below and in Appendix A.
(a)Year 1 Performance Shares. Subject to Sections 3(d), 5, 6, 7(a) and 7(b) of this Agreement, one-third of the Target Amount (or [1/3 OF TARGET AMOUNT] Performance Shares) will be eligible to vest based on achievement of the performance targets set forth in the table below for Performance Year 1 (June 1, 2020 through May 31, 2021) (the “Year 1 Performance Shares”). One-half of the Year 1 Performance Shares shall be eligible to vest based on the Company’s Worldwide Revenue achieved for Performance Year 1 (the “Year 1 Revenue Shares”), and one-half of the Year 1 Performance Shares shall be eligible to vest based on the Company’s Worldwide Adjusted EPS achieved for Performance Year 1 (the “Year 1 EPS Shares”), each in accordance with the following table:
The number of Year 1 Revenue Shares and Year 1 EPS Shares eligible to vest shall be calculated by multiplying the number of Year 1 Revenue Shares or Year 1 EPS Shares, as applicable, by the Revenue Payout Percentage or EPS Payout Percentage, respectively, set forth in the table above
2
for the applicable level of achievement. Each of the Revenue Payout Percentage and EPS Payout Percentage shall not be below 0% and shall not exceed 200%, and the Revenue Payout Percentage and EPS Payout Percentage for performance between the levels set forth in the table above shall be determined by straight-line interpolation between such levels. Therefore, subject to Section 3(d) of this Agreement, the total number of Year 1 Performance Shares eligible to vest (the “Year 1 Eligible Performance Shares”) shall be equal to:
Year 1 Eligible Performance Shares = (Year 1 Revenue Shares * Revenue Payout Percentage) + (Year 1 EPS Shares * EPS Payout Percentage).
(b)Year 2 Performance Shares. Subject to Sections 3(d), 5, 6, 7(a) and 7(b) of this Agreement, one-third of the Target Amount (or [1/3 OF TARGET AMOUNT] Performance Shares) will be eligible to vest based on achievement of the performance targets set forth in the table below for Performance Year 2 (June 1, 2021 through May 31, 2022) (the “Year 2 Performance Shares”). One-half of the Year 2 Performance Shares shall be eligible to vest based on the Company’s Worldwide Revenue Growth achieved for Performance Year 2 (the “Year 2 Revenue Shares”), and one-half of the Year 2 Performance Shares shall be eligible to vest based on the Company’s Worldwide Adjusted EPS achieved for Performance Year 2 (the “Year 2 EPS Shares”), each in accordance with the following table:
3
Provided; however; the baseline to calculate adjusted EPS growth for Performance Year 2 shall be the greater of: (a) actual adjusted EPS for FY21; and (b) $0.05.
The number of Year 2 Revenue Shares and Year 2 EPS Shares eligible to vest shall be calculated by multiplying the number of Year 2 Revenue Shares or Year 2 EPS Shares, as applicable, by the Revenue Payout Percentage or EPS Payout Percentage, respectively, set forth in the table above for the applicable level of achievement. Each of the Revenue Payout Percentage and EPS Payout Percentage shall not be below 0% and shall not exceed 200%, and the Revenue Payout Percentage and EPS Payout Percentage for performance between the levels set forth in the table above shall be determined by straight-line interpolation between such levels. Therefore, subject to Section 3(d) of this Agreement, the total number of Year 2 Performance Shares eligible to vest (the “Year 2 Eligible Performance Shares”) shall be equal to:
Year 2 Eligible Performance Shares = (Year 2 Revenue Shares * Revenue Payout Percentage) + (Year 2 EPS Shares * EPS Payout Percentage).
(c)Year 3 Performance Shares. Subject to Sections 3(d), 5, 6, 7(a) and 7(b) of this Agreement, one-third of the Target Amount (or [1/3 OF TARGET AMOUNT] Performance Shares) will be eligible to vest based on achievement of the performance targets set forth in the table below for Performance Year 3 (June 1, 2022 through May 31, 2023) (the “Year 3 Performance Shares”). One-half of the Year 3 Performance Shares shall be eligible to vest based on the Company’s Worldwide Revenue Growth achieved for Performance Year 3 (the “Year 3 Revenue Shares”), and one-half of the Year 3 Performance Shares shall be eligible to vest based on the Company’s Worldwide Adjusted EPS achieved for Performance Year 3 (the “Year 3 EPS Shares”), each in accordance with the following table:
4
Provided; however; the baseline to calculate adjusted EPS growth for Performance Year 3 shall be the greater of: (a) actual adjusted EPS for FY22; and (b) $0.10.
The number of Year 3 Revenue Shares and Year 3 EPS Shares eligible to vest shall be calculated by multiplying the number of Year 3 Revenue Shares or Year 3 EPS Shares, as applicable, by the Revenue Payout Percentage or EPS Payout Percentage, respectively, set forth in the table above for the applicable level of achievement. Each of the Revenue Payout Percentage and EPS Payout Percentage shall not be below 0% and shall not exceed 200%, and the Revenue Payout Percentage and EPS Payout Percentage for performance between the levels set forth in the table above shall be determined by straight-line interpolation between such levels. Therefore, subject to Section 3(d) of this Agreement, the total number of Year 3 Performance Shares eligible to vest (the “Year 3 Eligible Performance Shares”) shall be equal to:
Year 3 Eligible Performance Shares = (Year 3 Revenue Shares * Revenue Payout Percentage) + (Year 3 EPS Shares * EPS Payout Percentage).
5
(d)TSR Modifier; Total Performance Shares Eligible to Vest. Notwithstanding the performance criteria set forth in Sections 3(a) through (c) above, the vesting of the Performance Shares is further subject to achievement of the following Relative TSR performance goal over the Performance Period, as calculated in accordance with Appendix A:
| Relative TSR | TSR Multiplier | |||||||
75th Percentile or Above | 1.2 | |||||||
50th Percentile | 1.0 | |||||||
25th Percentile or Below | 0.8 | |||||||
The TSR Multiplier shall not be below 0.8 and shall not exceed 1.2, and shall be determined by straight-line interpolation for Relative TSR performance in between the levels set forth in the table above.
The total number of Performance Shares eligible to vest in accordance with Sections 5 through 7 of this Agreement (the “Total Eligible Performance Shares”) shall be equal to:
Total Eligible Performance Shares = TSR Multiplier * (Year 1 Eligible Performance Shares + Year 2 Eligible Performance Shares + Year 3 Eligible Performance Shares).
(e)Forfeiture Upon Failure to Satisfy Performance Conditions; Clawback. For the avoidance of doubt, any Performance Shares for which the applicable performance conditions are not satisfied in accordance with this Section 3 shall be automatically forfeited by the Participant without consideration at the end of the Performance Period (or, if earlier, the date of termination in the circumstances described in Section 6). Without limitation of Section 13(j) of the Plan, the Performance Shares and any Common Stock that may be issued with respect to the Performance Shares shall be subject to any recovery, recoupment, clawback, and/or other forfeiture policy maintained by the Company or its Subsidiaries or Affiliates from time to time.
(f)Board Determinations Binding; Adjustments to Performance Goals. Without limitation of Section 12(b) of the Plan, all determinations and interpretations of the terms of this Agreement and the Plan (including, without limitation, all calculations regarding the determination of the level of achievement of any of the performance targets set forth herein) shall be made by the Board (or the Committee, as applicable) in its sole discretion, and shall be final, binding, and conclusive on the Company, its Subsidiaries and Affiliates, and the Participant (and
6
each of their successors and assigns). Notwithstanding anything to the contrary set forth in this Agreement, the Board (or the Committee, as applicable) may modify the performance goals described in this Section 3 (including, without limitation, any of the definitions or formulas set forth on Appendix A) in any manner that the Board (or the Committee, as applicable) deems appropriate in its sole discretion to preserve the intended benefits of this Agreement, in each case to account for the impact of events that the Board (or the Committee, as applicable) deems appropriate, including, but not limited to, mergers, acquisitions, divestitures, licensing arrangements, accounting changes, currency fluctuations, financing activities, expenses for restructuring, and other extraordinary items, whether with respect to the Company, any member of the Peer Group, or otherwise. For the avoidance of doubt, the Performance Shares granted hereunder are not intended to constitute “Performance-Based Compensation” as defined in the Plan.
4. Participant’s Rights in Common Stock. The shares of Common Stock, if and when issued hereunder upon the vesting of any Performance Shares, shall be registered in the name of the Participant and evidenced in the manner as the Company may determine. During the period prior to the issuance of Common Stock, the Participant will have no rights of a stockholder of the Company with respect to the Common Stock underlying the Performance Shares, including no right to receive dividends or vote the shares of Common Stock underlying the Performance Shares.
5. Death; Retirement; Disability. In the event that the Participant’s employment with the Company or any of its Subsidiaries or Affiliates is terminated due to death, Retirement, or Disability, in each case on or after the Grant Date, but prior to the end of the Performance Period, the Performance Shares shall remain eligible to vest following the end date of the Performance Period; however, except as set forth in Section 7 of this Agreement, the Participant shall only be eligible to vest in a prorated portion of the Total Eligible Performance Shares calculated in accordance with Section 3 of this Agreement based on the Participant’s months of service (rounded to the nearest whole month) with the Company (or any of its Subsidiaries or Affiliates) during the Performance Period prior to the date of such termination. The Participant may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under this Agreement is to be paid in case of his or her death before he or she receives any or all such benefit. Each such designation shall revoke all prior designations by the Participant, shall be in a form prescribed by the Company, and will be effective only when filed by the Participant in writing with the Secretary of the Company during the Participant’s lifetime. In the absence of any such designation, benefits remaining unpaid at the Participant’s death shall be paid to the Participant’s estate.
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6. Other Terminations of Employment -- Eligibility Conditions. Except as set forth in Sections 5 or 7, vesting in any of the Total Eligible Performance Shares is expressly conditioned upon the Participant’s continuous employment with the Company or any of its Subsidiaries or Affiliates through the last day of the Performance Period. If the Participant’s employment with the Company and its Subsidiaries or Affiliates is terminated or the Participant separates from the Company and its Subsidiaries or Affiliates for any reason other than death, Retirement, or Disability, in each case prior to the end of the Performance Period (and unless Section 7 applies), the Performance Shares shall immediately terminate for no consideration and no shares of Common Stock shall be issued in respect thereof, regardless of whether any of the performance conditions in Section 3 of this Agreement would have otherwise been satisfied.
7. Change in Control. Notwithstanding anything to the contrary in this Agreement:
(a) in the event of a Change in Control on or after the Grant Date, but prior to the end of the Performance Period and prior to the Participant’s termination of employment with the Company or any Subsidiary or Affiliate for any reason, the Participant shall immediately vest in 100% of the Target Amount (regardless of the number of the Performance Shares that would have otherwise been eligible to vest pursuant to Section 3);
(b) in the event the Participant’s employment with the Company or any Subsidiary or Affiliate terminates due to one of the reasons expressly covered by Section 5 of this Agreement and a Change in Control of the Company occurs subsequent to such a termination of employment (but during the Performance Period), the prorated vesting provided for in Section 5 shall be based on 100% of the Target Amount instead of on the Total Eligible Performance Shares calculated in accordance with Section 3 of this Agreement;
(c) any shares of Common Stock subject to the Performance Shares that become vested as described in Sections 7(a) or (b) of this Agreement shall be issued to the Participant upon or as soon as practicable and in all events no later than thirty (30) days after the effective date of the Change in Control (or, if so provided by the Board, immediately prior to the Change in Control); provided, that such issuance does not result in the imposition of any additional taxes, interest, or penalties on the Participant under Section 409A, as defined below (and, if such issuance would result in such imposition, the shares of Common Stock shall instead be issued to the Participant at the time specified in Section 2); and
(d) in the event a Change in Control occurs following the last day of the Performance Period and prior to the date all vested shares of Common Stock underlying the Performance Shares are issued pursuant to Section 2 above, any shares of Common Stock subject to the Performance Shares that became vested pursuant to the terms of this Agreement shall be issued
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to the Participant upon or as soon as practicable (and in all events within thirty (30) days) after the effective date of the Change in Control (or, if so provided by the Board, immediately prior to the Change in Control).
8. Consideration for Stock. The shares of Common Stock underlying the Performance Shares that are issued pursuant to this Agreement will be issued for no cash consideration.
9. Issuance of Stock. The Company shall not be obligated to issue any shares of Common Stock underlying the Performance Shares that become vested pursuant to the terms of this Agreement until (i) all federal and state laws and regulations as the Company may deem applicable have been complied with; (ii) the shares have been listed or authorized for listing upon official notice to the Nasdaq Global Select Market (or such other U.S. national securities exchange) or have otherwise been accorded trading privileges; and (iii) all other legal matters in connection with the issuance and delivery of the shares have been approved by the Company’s legal department.
10. Tax Withholding. The Participant acknowledges that he or she shall be responsible for the payment of any taxes of any kind required by any national, state or local law to be paid with respect to the award of Performance Shares or the shares of Common Stock to be delivered hereunder, including, without limitation, the payment of any applicable withholding, income, social and similar taxes or obligations. The Participant further acknowledges that neither the Company nor any of its Subsidiaries or Affiliates (1) makes any representations or undertakings regarding the treatment of any tax-related matters in connection with any aspect of this Agreement, including the grant of the Performance Shares, the vesting of any of the Performance Shares, or the issuance of shares of Common Stock hereunder, the subsequent sale of any shares of Common Stock acquired hereunder and the receipt of any dividends (if applicable); or (2) commits or is under any obligation to structure the terms of the grant or any aspect of the Performance Shares to reduce or eliminate the Participant’s liability for tax-related matters or achieve any particular tax result. Further, if the Participant becomes subject to tax and/or social security contributions in more than one jurisdiction between the Grant Date and the date of any relevant taxable, tax and/or social security contribution withholding event, as applicable, the Participant acknowledges that the Company (or any of its Subsidiaries or Affiliates) may be required to withhold or account for tax-related matters in more than one jurisdiction. Prior to any relevant taxable, tax and/or social security contribution withholding event, the Participant shall pay or make adequate arrangements satisfactory to the Company to satisfy all tax-related matters. In this regard, the Participant authorizes the Company (or its applicable Subsidiary or Affiliate), at its sole discretion, to satisfy the obligations with respect to tax-related matters by one or a combination of the following: (i) withholding from the Participant’s wages or other cash compensation paid to him or her by the Company or any of its Subsidiaries or Affiliates; (ii)
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withholding from the proceeds of the sale of shares of Common Stock acquired hereunder, either through a voluntary sale or through a mandatory sale arranged by the Company (on the Participant’s behalf pursuant to this authorization); or (iii) withholding in shares of Common Stock to be issued hereunder. The Company (or its applicable Subsidiary or Affiliate) will withhold or account for tax-related matters by considering applicable maximum statutory withholding amounts or other applicable withholding rates. If the obligation for tax-related matters is satisfied by withholding in shares of Common Stock, for tax purposes, the Participant will be deemed to have been issued the full number of shares of Common Stock subject to the vested portion of the Performance Shares, notwithstanding that a number of the shares of Common Stock that would otherwise be delivered to the Participant is held back solely for the purpose of paying any taxes of any kind due as a result of any aspect of the Participant’s holding of these Performance Shares. Finally, the Participant shall pay to the Company (or at the Company’s direction, its applicable Subsidiary or Affiliate) the amount of taxes of any kind that the Company (or such applicable Subsidiary or Affiliate) may be required to withhold or account for as a result of Participant’s holding of these Performance Shares that cannot be satisfied by the means described in this Section 10. The Company may refuse to issue or deliver shares of Common Stock or the proceeds of the sale of shares of Common Stock to the Participant if the Participant fails to comply with Participant’s obligation in connection with any tax-related matters.
11. Compliance with Section 409A. This Agreement is intended to comply with, or be exempt from, the requirements of Section 409A of the Code and the regulations promulgated thereunder (together, “Section 409A”). Accordingly, all provisions herein shall be construed and interpreted to comply with, or to be exempt from, Section 409A. This Agreement may be amended at any time by the Company, without the consent of the Participant, to avoid the application of Section 409A in a particular circumstance or that is necessary or desirable to satisfy any of the requirements under Section 409A, but the Company shall not be under any obligation to make any such amendment. Nothing in this Agreement shall provide a basis for any person to take action against the Company or any of its Subsidiaries or Affiliates based on matters covered by Section 409A, including the tax treatment of any amount paid or Performance Shares granted under this Agreement, and neither the Company nor any of its Subsidiaries or Affiliates shall under any circumstances have any liability to Participant or his or her estate or any other party for any taxes, penalties or interest due on amounts paid or payable under this Agreement, including taxes, penalties or interest imposed under Section 409A. Notwithstanding any provision to the contrary in this Agreement, if shares of Common Stock or other amounts become issuable or distributable under this Agreement by reason of the Participant’s “separation from service,” within the meaning of Section 409A, and the Participant is a “specified employee,” within the meaning of Section 409A, at the time of such “separation from service,” the shares of Common Stock shall not be issued or distributed to the Participant prior to the
10
earlier of (i) the first day of the seventh (7th) month following the date of the Participant’s Separation from Service or (ii) the date of the Participant’s death, if such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i). Upon the expiration of the applicable Section 409A(a)(2)(B)(i) deferral period, any shares of Common Stock underlying the Performance Shares issued pursuant to this Agreement, the delivery of which is deferred pursuant to this Section 11, shall be issued or distributed (without interest) to the Participant.
12. Recapitalization. Without limitation of Section 10 of the Plan, in the event there is any change in the Company’s Common Stock through the declaration of stock dividends or through recapitalization resulting in stock split-ups or through merger, consolidation, exchange of shares of Common Stock, or otherwise, the number and class of shares of Common Stock subject to the Performance Shares shall be equitably adjusted by the Company, in a manner determined in its sole discretion, to prevent dilution or enlargement of the benefits intended to be conferred by the Performance Shares under this Agreement.
13. Investment Intent; Unfunded Obligation. The Participant acknowledges that the acquisition of shares of Common Stock to be issued hereunder is for investment purposes without a view to distribution thereof. The Participant further acknowledges that the Performance Shares granted hereunder represent an unfunded, unsecured right to receive shares of Common Stock in respect of the Performance Shares that become vested in accordance with the terms of this Agreement, if any.
14. Limits on Transferability; Restrictions on Shares; Legend on Certificate. Until any shares of Common Stock have been issued in accordance with the terms of this Agreement or by action of the Board, the Performance Shares are not transferable and shall not be sold, transferred, assigned, pledged, gifted, hypothecated or otherwise disposed of or encumbered by the Participant. Transfers by the Participant of any shares of Common Stock delivered under this Agreement are subject to the Company’s Insider Trading Policy and applicable securities laws. Shares of Common Stock issued to the Participant in certificate form or to the Participant’s book entry account upon satisfaction of the vesting and other conditions of the Performance Shares may be restricted from transfer or sale by the Company and evidenced by stop-transfer instructions upon the Participant’s book entry account or restricted legend(s) affixed to certificates in the form as the Company or its counsel may require with respect to any applicable restrictions on sale or transfer.
15. Award Subject to the Plan. The Performance Shares granted pursuant to this Agreement are subject to the Plan. The terms and provisions of the Plan, as each may be amended from time to time, are hereby incorporated herein by reference. In the event of a
11
conflict between any term or provision contained in this Agreement and a term or provision of the Plan, the applicable terms and conditions of the Plan will govern and prevail. However, no amendment of the Plan after the date hereof may adversely alter or impair the issuance of the Common Stock underlying the Performance Shares to be made pursuant to this Agreement without the Participant’s consent.
16. No Rights to Continued Employment. This Agreement shall not confer upon the Participant any right to continuation of employment with the Company, its Subsidiaries or Affiliates, nor shall this Agreement interfere in any way with the Company’s (or its Subsidiaries’ or Affiliates’) right to terminate the Participant’s employment at any time with or without cause.
17. Legal Notices. Any legal notice necessary under this Agreement shall be addressed to the Company in care of its General Counsel at the principal executive offices of the Company and to the Participant at the address appearing in the personnel records of the Company for such Participant or to either party at such other address as either party may designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
18. Governing Law. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of New York (without regard to the conflict of laws principles thereof) and applicable federal laws. For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereby submit and consent to the exclusive jurisdiction of the State of New York and agree that such litigation shall be conducted only in the State of New York, or the federal courts for the United States for the Northern District of New York, and no other courts, where this Agreement is made and/or to be performed.
19. Amendment. Upon the approval of the Board in its sole discretion, the Board or the Committee may terminate, amend or modify this Agreement, provided, however, that, subject to Sections 3(f), 11 and 12 of this Agreement, no such amendment or modification of this Agreement may in any way adversely affect the Participant’s rights under this Agreement without the Participant’s written consent.
20. Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.
21. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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This Agreement is being signed as of the Grant Date.
AngioDynamics, Inc.
By: ______________________________
Name: ______________________________
Title: ______________________________
Participant
By: ______________________________
Name: ______________________________
14
APPENDIX A – CERTAIN DEFINITIONS AND CALCULATIONS
For purposes of this Agreement, the following terms have the meanings set forth below:
(a)“Change in Control” shall mean that any of the following events has occurred:
(i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (A) of paragraph (iii) below; or
(ii) the following individuals cease for any reason to constitute a majority of the number of directors serving on the Board: individuals who, at the beginning of any period of two consecutive years or less (not including any period prior to the date of this Agreement), constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s shareholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of such period or whose appointment, election or nomination for election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of the Company or any Subsidiary with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary, at least 60% of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than
15
a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least 60% of the combined voting power of the voting securities of which are owned by shareholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale.
(b)“Disability” means disability as determined by the Board in its sole discretion.
(c)The “Peer Group” means the Company, together with the group of companies set forth on Schedule A hereto:
Without limitation of Section 3(f) of this Agreement, the Board (or the Committee, as applicable) shall have the sole discretion to make adjustments to the foregoing Peer Group to preserve the intended benefits of this Agreement, in each case to account for the impact of events that the Board (or the Committee, as applicable) deems appropriate, including, but not limited to, mergers, acquisitions, divestitures, licensing arrangements, accounting changes, currency fluctuations, financing activities, expenses for restructuring, and other extraordinary items, whether with respect to the Company, any member of the Peer Group, or otherwise.
(d)“Relative TSR” means “relative total shareholder return,” expressed as a percentile, and calculated as follows:
(1)“TSR,” or “total shareholder return,” for each member of the Peer Group shall be calculated using the following formula:
TSR = (Change in Stock Price + Dividends Paid) / Beginning Stock Price.
“Beginning Stock Price,” for each member of the Peer Group (including the Company), shall mean the average of the daily closing prices on the applicable stock exchange of one share of such Peer Group member’s common stock for the 20 calendar day period ending as of the close of business on the last trading day immediately prior to the first day of the Performance Period.
“Change in Stock Price,” for each member of the Peer Group (including the Company), shall mean the Ending Stock Price less the Beginning Stock Price.
“Dividends Paid,” for each member of the Peer Group (including the Company), shall mean the total of all dividends paid on one share of such Peer Group member’s common stock during the Performance Period.
“Ending Stock Price,” for each member of the Peer Group (including the Company), shall mean the average of the daily closing prices on the applicable stock exchange of one share of such Peer Group member’s common stock for the
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20 calendar day period ending as of the close of business on the last trading day of the Performance Period.
(2)Following the calculation of the TSR for the Performance Period for the Company and each other company in the Peer Group, the Company and the other companies in the Peer Group will be ranked, in order of maximum to minimum, according to their respective TSR for the Performance Period.
(3)After this ranking, the Company’s Relative TSR, expressed as a percentile, shall be determined by the following formula:
“P” represents the Company’s Relative TSR, expressed as a percentile and rounded, if necessary, up to the next whole percentile.
“N” represents the number of companies in the Peer Group (including the Company).
“R” represents the Company’s ranking versus the other companies in the Peer Group determined in accordance with items (1) and (2) above.
Example: If the Company ranked 10th out of 56 total companies in the Peer Group (inclusive of the Company), the Relative TSR (“P”) therefore will be in the 84th percentile.
This calculation is as follows: 0.837 = 1 - (10 - 1) / (56 - 1).
(e)“Retirement” means retirement as determined by the Board in its sole discretion.
(f)“Worldwide Revenue” means for any particular Performance Year: revenue as publicly reported by the Company for that year and as reviewed by the Board’s Audit Committee and Compensation Committee.
(g)“Worldwide Revenue Growth” means for any particular Performance Year: the following quotient (expressed as a percentage): (A) the excess, if any, of Worldwide Revenue for that year minus Worldwide Revenue for the immediately preceding Performance Year, divided by (B) Worldwide Revenue for the immediately preceding Performance Year.
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(h)“Worldwide Adjusted EPS” means for any particular Performance Year: adjusted earnings per share as publicly reported by the Company for that year and as reviewed by the Board’s Audit Committee and Compensation Committee.
18
Schedule A
| Becton, Dickinson and Company | Stryker Corporation | ||||
| Boston Scientific Corporation | Intuitive Surgical, Inc. | ||||
| Edwards Lifesciences Corporation | Varian Medical Systems, Inc. | ||||
| STERIS plc | ResMed Inc. | ||||
| Teleflex Incorporated | Integra LifeSciences Holdings Corporation | ||||
| DexCom, Inc. | NuVasive, Inc. | ||||
| Invacare Corporation | Cantel Medical Corp. | ||||
| CONMED Corporation | Masimo Corporation | ||||
| Wright Medical Group N.V. | Abiomed, Inc. | ||||
| Insulet Corporation | Natus Medical Incorporated | ||||
| Accuray Incorporated | CryoLife, Inc. | ||||
| AtriCure, Inc. | Abbott Laboratories | ||||
| Medtronic plc | Danaher Corporation | ||||
| Baxter International Inc. | Zimmer Biomet Holdings, Inc. | ||||
| Hologic, Inc. | IDEXX Laboratories, Inc. | ||||
| Envista Holdings Corporation | LivaNova PLC | ||||
| Integer Holdings Corporation | Globus Medical, Inc. | ||||
| Varex Imaging Corporation | Orthofix Medical Inc. | ||||
| Penumbra, Inc. | Inogen, Inc. | ||||
| Nevro Corp. | Tandem Diabetes Care, Inc. | ||||
| NovoCure Limited | Glaukos Corporation | ||||
| Cardiovascular Systems, Inc. | |||||
Exhibit 31.1
CERTIFICATION
I, James C. Clemmer, certify that:
| 1. | I have reviewed this quarterly report on Form 10-Q of AngioDynamics, 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 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 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; | |||||||
| (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 | |||||||
| 5. | The registrant's other certifying officer 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): | |||||||
| (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: January 8, 2021
/ S / JAMES C. CLEMMER
James C. Clemmer, President,
Chief Executive Officer
Exhibit 31.2
CERTIFICATION
I, Stephen A. Trowbridge, certify that:
| 1. | I have reviewed this quarterly report on Form 10-Q of AngioDynamics, 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 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 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; | |||||||
| (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 | |||||||
| 5. | The registrant's other certifying officer 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): | |||||||
| (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: January 8, 2021
/ S / STEPHEN A. TROWBRIDGE
Stephen A. Trowbridge, Executive Vice President,
Chief Financial Officer
Exhibit 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO TITLE 18,
UNITED STATES CODE, SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, James C. Clemmer, President, Chief Executive Officer and Director of ANGIODYNAMICS, Inc. (the "Company"), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to the best of my knowledge:
| 1. | the quarterly report on Form 10-Q of the Company for the fiscal quarter ended November 30, 2020 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and | |||||||
| 2. | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. | |||||||
Date: January 8, 2021
| / S / JAMES C. CLEMMER | |||||
| James C. Clemmer, President, Chief Executive Officer | |||||
Exhibit 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO TITLE 18,
UNITED STATES CODE, SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Stephen A. Trowbridge, Senior Vice President, General Counsel and Interim Chief Financial Officer of ANGIODYNAMICS, Inc. (the "Company"), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to the best of my knowledge:
| 1. | the quarterly report on Form 10-Q of the Company for the fiscal quarter ended November 30, 2020 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and | |||||||
| 2. | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. | |||||||
Date: January 8, 2021
| / S / STEPHEN A. TROWBRIDGE | |||||
| Stephen A. Trowbridge, Executive Vice President, Chief Financial Officer | |||||