UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended November 29, 2003
-----------------
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 1-11479
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E-Z-EM, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 11-1999504
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1111 Marcus Avenue, Lake Success, New York 11042
------------------------------------------ ----------
(Address of principal executive offices) (Zip Code)
(516) 333-8230
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Registrant's telephone number, including area code
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 |X| No |_|
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act).
Yes |_| No |X|
As of January 8, 2004, there were 10,303,153 shares of the issuer's common stock
outstanding.
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E-Z-EM, Inc. and Subsidiaries
INDEX
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Part 1: Financial Information Page
------- --------------------- ----
Item 1. Financial Statements
Consolidated Balance Sheets - November 29, 2003 and
May 31, 2003 3 - 4
Consolidated Statements of Earnings - thirteen and twenty-
six weeks ended November 29, 2003 and November 30, 2002 5
Consolidated Statement of Stockholders' Equity and
Comprehensive Income - twenty-six weeks ended
November 29, 2003 6
Consolidated Statements of Cash Flows - twenty-six weeks
ended November 29, 2003 and November 30, 2002 7 - 8
Notes to Consolidated Financial Statements 9 - 17
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 18 - 29
Item 3. Quantitative and Qualitative Disclosures About
Market Risk 29 - 30
Item 4. Controls and Procedures 30
Part II: Other Information
-------- -----------------
Item 1. Legal Proceedings 31
Item 2. Changes in Securities and Use of Proceeds 31
Item 3. Defaults Upon Senior Securities 31
Item 4. Submission of Matters to a Vote of Security Holders 32
Item 5. Other Information 32
Item 6. Exhibits and Reports on Form 8-K 32 - 33
-2-
E-Z-EM, Inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(in thousands)
November 29, May 31,
ASSETS 2003 2003
-------- --------
(unaudited) (audited)
CURRENT ASSETS
Cash and cash equivalents $ 10,086 $ 9,459
Restricted cash 220 798
Debt and equity securities, at fair value 5,952 8,506
Accounts receivable, principally
trade, net 25,370 23,393
Inventories 30,662 28,467
Other current assets 4,723 4,703
-------- --------
Total current assets 77,013 75,326
PROPERTY, PLANT AND EQUIPMENT - AT COST,
less accumulated depreciation and
amortization 24,322 23,457
GOODWILL, less accumulated amortization 444 421
INTANGIBLE ASSETS, less accumulated
amortization 1,175 1,302
DEBT AND EQUITY SECURITIES, at fair value 3,743 2,171
INVESTMENTS AT COST 1,200 1,200
OTHER ASSETS 6,928 6,747
-------- --------
$114,825 $110,624
======== ========
The accompanying notes are an integral part of these statements.
-3-
E-Z-EM, Inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share data)
November 29, May 31,
LIABILITIES AND STOCKHOLDERS' EQUITY 2003 2003
-------- ---------
(unaudited) (audited)
CURRENT LIABILITIES
Notes payable $ 554 $ 597
Current maturities of long-term debt 284 302
Accounts payable 6,407 6,494
Accrued liabilities 8,522 7,724
Accrued income taxes 434 86
-------- ---------
Total current liabilities 16,201 15,203
LONG-TERM DEBT, less current maturities 3,342 3,470
OTHER NONCURRENT LIABILITIES 3,502 3,349
-------- ---------
Total liabilities 23,045 22,022
-------- ---------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Preferred stock, par value $.10 per
share - authorized, 1,000,000 shares;
issued, none
Common stock, par value $.10 per share -
authorized, 16,000,000 shares; issued
and outstanding 10,299,582 shares at
November 29, 2003 and 10,101,374 shares
at May 31, 2003 (excluding 74,234 and
36,834 shares held in treasury at November
29, 2003 and May 31, 2003, respectively) 1,030 1,010
Additional paid-in capital 22,750 21,598
Retained earnings 65,382 66,464
Accumulated other comprehensive income (loss) 2,618 (470)
-------- ---------
Total stockholders' equity 91,780 88,602
-------- ---------
$114,825 $ 110,624
======== =========
The accompanying notes are an integral part of these statements.
-4-
E-Z-EM, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF EARNINGS
(unaudited)
(in thousands, except per share data)
Thirteen weeks ended Twenty-six weeks ended
---------------------------- ----------------------------
November 29, November 30, November 29, November 30,
2003 2002 2003 2002
-------- -------- -------- --------
Net sales $ 36,938 $ 32,900 $ 69,995 $ 63,180
Cost of goods sold 20,389 17,828 39,477 35,611
-------- -------- -------- --------
Gross profit 16,549 15,072 30,518 27,569
-------- -------- -------- --------
Operating expenses
Selling and administrative 11,589 11,789 23,147 23,816
Asset impairment and facility
closing costs 116 116
Plant closing and operational
restructuring costs 628 1,200
Research and development 1,998 1,658 3,802 3,247
-------- -------- -------- --------
Total operating expenses 14,215 13,563 28,149 27,179
-------- -------- -------- --------
Operating profit 2,334 1,509 2,369 390
Other income (expense)
Interest income 46 65 98 135
Interest expense (118) (118) (233) (187)
Other, net 521 150 550 466
-------- -------- -------- --------
Earnings before income
taxes 2,783 1,606 2,784 804
Income tax provision 1,014 618 1,314 557
-------- -------- -------- --------
NET EARNINGS $ 1,769 $ 988 $ 1,470 $ 247
======== ======== ======== ========
Earnings per common share
Basic $ .17 $ .10 $ .14 $ .02
======== ======== ======== ========
Diluted $ .17 $ .09 $ .14 $ .02
======== ======== ======== ========
Weighted average common shares
Basic 10,272 10,017 10,217 10,005
======== ======== ======== ========
Diluted 10,545 10,406 10,475 10,403
======== ======== ======== ========
The accompanying notes are an integral part of these statements.
-5-
E-Z-EM, Inc. and Subsidiaries
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE INCOME
Twenty-six weeks ended November 29, 2003
(unaudited)
(in thousands, except share data)
Accumulated
Common stock Additional other Compre-
------------------------ paid-in Retained comprehensive hensive
Shares Amount capital earnings income (loss) Total income
---------- ------ ---------- -------- ------------- -------- -------
Balance at May 31, 2003 10,101,374 $1,010 $21,598 $66,464 $ (470) $ 88,602
Exercise of stock options 226,608 23 1,052 1,075
Income tax benefits on
stock options exercised 404 404
Compensation related to
stock option plans 2 2
Issuance of stock 9,000 1 107 108
Purchase of treasury stock (37,400) (4) (413) (417)
Net earnings 1,470 1,470 $1,470
Cash dividend ($.25 per
common share) (2,552) (2,552)
Unrealized holding gain on debt
and equity securities
Arising during the period 1,822 1,822 1,822
Reclassification adjustment
for gains included in
net earnings (212) (212) (212)
Increase in fair market value
on interest rate swap 131 131 131
Foreign currency translation
adjustments 1,347 1,347 1,347
---------- ------ ------- ------- ------ -------- ------
Comprehensive income $4,558
======
Balance at November 29, 2003 10,299,582 $1,030 $22,750 $65,382 $2,618 $ 91,780
========== ====== ======= ======= ====== ========
The accompanying notes are an integral part of this statement.
-6-
E-Z-EM, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
(in thousands)
Twenty-six weeks ended
---------------------------
November 29, November 30,
2003 2002
-------- --------
Cash flows from operating activities:
Net earnings $ 1,470 $ 247
Adjustments to reconcile net earnings to
net cash provided by (used in) operating
activities
Depreciation and amortization 1,792 1,599
Impairment of long-lived assets 116
Gain on sale of investments (336)
Provision for doubtful accounts 67 164
Deferred income tax provision (benefit) (34) 3
Other non-cash items 110 65
Changes in operating assets and
liabilities
Accounts receivable (2,044) (4,163)
Inventories (2,195) (1,677)
Other current assets (97) (223)
Other assets (306) (480)
Accounts payable (87) (160)
Accrued liabilities 1,006 (249)
Accrued income taxes 786 (142)
Other noncurrent liabilities 93 119
-------- --------
Net cash provided by (used in)
operating activities 225 (4,781)
-------- --------
Cash flows from investing activities:
Additions to property, plant and
equipment, net (2,053) (3,110)
Restricted cash used in investing
activities 578 (2,447)
Investment at cost (300)
Available-for-sale securities
Purchases (13,622) (62,247)
Proceeds from sale 16,694 66,960
-------- --------
Net cash provided by (used in)
investing activities 1,597 (1,144)
-------- --------
Cash flows from financing activities:
Proceeds from issuance of debt 3,531
Repayments of debt (258) (167)
Dividends paid (2,552)
Proceeds from exercise of stock options 1,075 395
Purchase of treasury stock (417) (139)
-------- --------
Net cash provided by (used in)
financing activities (2,152) 3,620
-------- --------
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E-Z-EM, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
(unaudited)
(in thousands)
Twenty-six weeks ended
---------------------------
November 29, November 30,
2003 2002
------- -------
Effect of exchange rate changes on
cash and cash equivalents $ 957 $ (367)
------- -------
INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS 627 (2,672)
Cash and cash equivalents
Beginning of period 9,459 8,019
------- -------
End of period $10,086 $ 5,347
======= =======
Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest $ 126 $ 81
------- =======
Income taxes $ 586 $ 943
======= =======
The accompanying notes are an integral part of these statements.
-8-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
November 29, 2003 and November 30, 2002
(unaudited)
NOTE A - CONSOLIDATED FINANCIAL STATEMENTS
The consolidated balance sheet as of November 29, 2003, the consolidated
statement of stockholders' equity and comprehensive income for the period
ended November 29, 2003, and the consolidated statements of earnings and
cash flows for the periods ended November 29, 2003 and November 30, 2002,
have been prepared by the Company without audit. The consolidated balance
sheet as of May 31, 2003 was derived from audited consolidated financial
statements. In the opinion of management, all adjustments (which include
only normal recurring adjustments) necessary to present fairly the
financial position, changes in stockholders' equity and comprehensive
income, results of operations and cash flows at November 29, 2003 (and for
all periods presented) have been made.
Certain information and footnote disclosures, normally included in
financial statements prepared in accordance with accounting principles
generally accepted in the United States of America, have been condensed or
omitted. It is suggested that these consolidated financial statements be
read in conjunction with the financial statements and notes thereto
included in the fiscal 2003 Annual Report on Form 10-K filed by the
Company on August 29, 2003. The results of operations for the periods
ended November 29, 2003 and November 30, 2002 are not necessarily
indicative of the operating results for the respective full years.
The consolidated financial statements include the accounts of E-Z-EM, Inc.
("E-Z-EM") and all 100%-owned subsidiaries (the "Company"). All
significant intercompany balances and transactions have been eliminated.
NOTE B - STOCK-BASED COMPENSATION
In December 2002, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 148, "Accounting
for Stock-Based Compensation - Transition and Disclosure." SFAS No. 148
amends the disclosure provisions of SFAS No. 123, "Accounting for
Stock-Based Compensation," and APB Opinion No. 28, "Interim Financial
Reporting," to require disclosure in the summary of significant accounting
policies of the effects of an entity's accounting policy with respect to
stock-based employee compensation on reported net earnings and earnings
per share in annual and interim financial statements. The adoption of SFAS
No. 148 disclosure requirements, effective March 2, 2003, did not have an
effect on the Company's consolidated financial statements. At November 29,
2003, the Company has three stock-based compensation plans. The Company
accounts for these plans under the recognition and measurement principles
of APB Opinion No. 25, "Accounting for Stock Issued to Employees" and
related interpretations. Accordingly, no compensation expense has been
recognized under these plans concerning options granted to key employees
and to members of the Board of Directors, as all such options granted had
an exercise price equal to or greater than the market value of the
underlying common stock on the date of grant. During each of the thirteen
weeks ended November 29, 2003 and November 30, 2002, compensation expense
of $1,000 was recognized under these plans for options granted to
consultants. During each of the twenty-six weeks ended November 29, 2003
and November 30, 2002, compensation expense of $2,000 was recognized under
these plans for options granted to consultants.
-9-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE B - STOCK-BASED COMPENSATION (continued)
The following table illustrates the effect on net earnings and earnings
per share if the Company had applied the fair value recognition provisions
of SFAS No. 123 to options granted under these plans to key employees and
to members of the Board of Directors:
Thirteen weeks ended Twenty-six weeks ended
--------------------------- ---------------------------
November 29, November 30, November 29, November 30,
2003 2002 2003 2002
-------- -------- -------- --------
(in thousands)
Net earnings, as reported $ 1,769 $ 988 $ 1,470 $ 247
Deduct: Total stock-based
employee compensation
expense determined under
the fair value based
method for all awards (213) (226) (424) (451)
-------- -------- -------- --------
Pro forma net earnings
(loss) $ 1,556 $ 762 $ 1,046 $ (204)
======== ======== ======== ========
Earnings (loss) per common
share
Basic - as reported $ .17 $ .10 $ .14 $ .02
======== ======== ======== ========
Basic - pro forma $ .15 $ .08 $ .10 $ (.02)
======== ======== ======== ========
Diluted - as reported $ .17 $ .09 $ .14 $ .02
======== ======== ======== ========
Diluted - pro forma $ .15 $ .07 $ .10 $ (.02)
======== ======== ======== ========
NOTE C - EARNINGS PER COMMON SHARE
Basic earnings per share are based on the weighted average number of
common shares outstanding without consideration of potential common stock.
Diluted earnings per share are based on the weighted average number of
common and potential common shares outstanding. The calculation takes into
account the shares that may be issued upon exercise of stock options,
reduced by the shares that may be repurchased with the funds received from
the exercise, based on the average price during the period.
The following table sets forth the reconciliation of the weighted average
number of common shares:
Thirteen weeks ended Twenty-six weeks ended
----------------------------- -----------------------------
November 29, November 30, November 29, November 30,
2003 2002 2003 2002
------ ------ ------ ------
(in thousands)
Basic 10,272 10,017 10,217 10,005
Effect of dilutive
securities (stock options) 273 389 258 398
------ ------ ------ ------
Diluted 10,545 10,406 10,475 10,403
====== ====== ====== ======
-10-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE C - EARNINGS PER COMMON SHARE (continued)
Excluded from the calculation of earnings per common share, are options to
purchase 5,305 shares of common stock for the thirteen and twenty-six
weeks ended November 29, 2003 and options to purchase 452,155 shares of
common stock for the thirteen and twenty-six weeks ended November 30,
2002, as their inclusion would be anti-dilutive. The exercise price on the
excluded options was $12.49 per share at November 29, 2003 and the range
of exercise prices on the excluded options was $8.50 to $12.49 per share
at November 30, 2002.
NOTE D - EFFECTS OF RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
As of July 1, 2003, the Company adopted SFAS No. 149, "Amendment of
Statement 133 on Derivative Instruments and Hedging Activities." SFAS No.
149 amends and clarifies accounting for derivative instruments, including
certain derivative instruments embedded in other contracts, and for
hedging activities under SFAS No. 133. The adoption of this statement has
had no current effect on the Company's financial position or results of
operations.
As of August 31, 2003, the Company adopted SFAS No. 150, "Accounting for
Certain Financial Instruments with Characteristics of Both Liabilities and
Equity." SFAS No. 150 changes the accounting for certain financial
instruments that, under previous guidance, issuers could account for as
equity. The new statement requires that those instruments be classified as
liabilities in statements of financial position. The adoption of SFAS No.
150 has had no current effect on the Company's financial position or
results of operations.
As of August 31, 2003, the Company adopted FASB Interpretation No. 46
("FIN No. 46"), "Consolidation of Variable Interest Entities." In general,
a variable interest entity is a corporation, partnership, trust, or any
other legal structure used for business purposes that either (a) does not
have equity investors with voting rights or (b) has equity investors that
do not provide sufficient financial resources for the entity to support
its activities. A variable interest entity often holds financial assets,
including loans or receivables, real estate or other property. A variable
interest entity may be essentially passive or it may engage in activities
on behalf of another company. Until now, a company generally has included
another entity in its consolidated financial statements only if it
controlled the entity through voting interests. FIN No. 46 changes that by
requiring a variable interest entity to be consolidated by a company if
that company is subject to a majority of the risk of loss from the
variable interest entity's activities or entitled to receive a majority of
the entity's residual returns or both. The adoption of FIN No. 46 has had
no current effect on the Company's consolidated financial condition or
results of operations.
-11-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE D - EFFECTS OF RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS (continued)
As of August 31, 2003, the Company adopted Emerging Issues Task Force
("EITF") 00-21, "Revenue Arrangements with Multiple Deliverables". EITF
00-21 provides that revenue arrangements with multiple deliverables should
be divided into separate units of accounting if certain criteria are met.
The consideration of the arrangement should be allocated to the separate
units of accounting based on their relative fair values, with different
provisions if the fair value is contingent on delivery of specified items
or performance conditions. Applicable revenue criteria should be
considered separately for each separate unit of accounting. The adoption
of EITF 00-21 has had no current effect on the Company's financial
position and results of operations.
NOTE E - COMPREHENSIVE INCOME (LOSS)
The components of comprehensive income (loss), net of related tax, are as
follows:
Thirteen weeks ended Twenty-six weeks ended
---------------------------- -----------------------------
November 29, November 30, November 29, November 30,
2003 2002 2003 2002
------- ----- ------- -------
(in thousands)
Net earnings $ 1,769 $ 988 $ 1,470 $ 247
Unrealized holding gain
(loss) on debt and equity
securities
Arising during the period 1,678 93 1,822 (758)
Reclassification
adjustment for gains
included in net
earnings (212) (212)
Increase (decrease) in fair
value on interest rate swap (24) (172) 131 (172)
Foreign currency translation
adjustments 1,649 (136) 1,347 (512)
------- ----- ------- -------
Comprehensive income
(loss) $ 4,860 $ 773 $ 4,558 $(1,195)
======= ===== ======= =======
The components of accumulated other comprehensive income (loss), net of
related tax, are as follows:
November 29, May 31,
2003 2003
------- -----
(in thousands)
Unrealized holding gain on debt
and equity securities $ 2,365 $ 755
Fair value on interest rate swap (169) (300)
Cumulative translation adjustments 422 (925)
------- -----
Accumulated other comprehensive income $ 2,618 $(470)
(loss) ======= =====
-12-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE F - PLANT CLOSING AND OPERATIONAL RESTRUCTURING
In May 2003, the Company announced a plan to close its device
manufacturing facility in San Lorenzo, Puerto Rico as well as its
heat-sealing operation in Westbury, New York, each of which is part of the
E-Z-EM segment. The Company has entered into an agreement to outsource
these operations to a third-party manufacturer. This realignment is part
of the Company's strategic plan of restructuring its operations to achieve
greater efficiency. The Company expects the project to be completed in the
fourth quarter of fiscal 2004 and generate savings beginning in the 2005
fiscal year. Project costs, primarily severance related, are estimated at
$1,900,000 and will affect fiscal 2004. During the thirteen and twenty-six
weeks ended November 29, 2003, project costs aggregated $628,000 and
$1,200,000, respectively. No loss is expected on the long-lived assets,
principally land and building with a net carrying value of $1,067,000 at
November 29, 2003.
NOTE G - INVENTORIES
Inventories consist of the following:
November 29, May 31,
2003 2003
------- -------
(in thousands)
Finished goods $16,008 $15,738
Work in process 2,715 1,653
Raw materials 11,939 11,076
------- -------
$30,662 $28,467
======= =======
NOTE H - LONG-TERM DEBT
In September 2002, the Company closed on the financing for the expansion
of the AngioDynamics headquarters and manufacturing facility in
Queensbury, New York. The expansion is being financed principally with
Industrial Revenue Bonds (the "Bonds") issued by the Warren and Washington
Counties Industrial Development Agency (the "Agency") aggregating
$3,500,000. The Bonds are issued under a Trust Agreement by and between
the Agency and a bank, as trustee (the "Trustee"). The proceeds of the
Bonds are being advanced, as construction occurs, pursuant to a Building
Loan Agreement by and among the Agency, the Trustee, a second bank (the
"Bank") and the Company. As of November 29, 2003, the advances aggregated
$3,280,000 with the remaining proceeds of $220,000 classified as
restricted cash. The Bonds re-price every seven days and are resold by a
Remarketing Agent. The Bonds bear interest based on the market rate on the
date the Bonds are resold (1.30% per annum at November 29, 2003) and
require quarterly interest payments and quarterly principal payments
ranging from $25,000 to $65,000 through May 2022. In connection with the
issuance of the Bonds, the Company entered into a Letter of Credit and
Reimbursement Agreement with the Bank which requires the maintenance of a
letter of credit for an initial amount of $3,575,000 to support
outstanding principal and certain interest payments of the Bonds and
-13-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE H - LONG-TERM DEBT (continued)
requires payment of an annual fee on the outstanding balance ranging from
1% to 1.9%, depending on financial results achieved. The Company also
entered into a Remarketing Agreement, pursuant to which the Remarketing
Agent will use its best efforts to arrange for a sale in the secondary
market of such Bonds. The Remarketing Agreement provides for the payment
of an annual fee of .1% of the remaining balance.
The Reimbursement Agreement contains certain financial covenants relating
to fixed charge coverage and interest coverage, as defined. Amounts
borrowed under the Agreement are secured by the aforementioned letter of
credit and a first mortgage on the land, building and equipment relating
to the facility.
The Company entered into an interest rate swap agreement with the Bank,
effective September 2002, with an initial notional amount of $3,500,000 to
limit the effect of variability due to interest rates on its rollover of
the Bonds. The swap agreement, which qualifies as a hedge under SFAS No.
133, is a contract to exchange floating interest rate payments for fixed
interest payments periodically over the life of the agreement without the
exchange of the underlying notional amounts. The swap agreement requires
the Company to pay a fixed rate of 4.45% and receive payments based on 30
day LIBOR repriced every seven days through May 2022. Since the swap
agreement is classified as a cash flow hedge, the fair value of $268,000
has been recorded as a component of accrued liabilities, and accumulated
other comprehensive income has been decreased by $169,000, net of tax
benefit, with no impact on earnings (see Note E). Amounts to be paid or
received under the swap agreement are accrued as interest rates change and
are recognized over the life of the swap agreement as an adjustment to
interest expense.
NOTE I - COMMON STOCK
Under the 1983 and 1984 Stock Option Plans, options for 226,608 shares
were exercised at prices ranging from $4.22 to $8.58 per share, options
for 1,505 shares were forfeited at $5.63 per share, and no options were
granted or expired during the twenty-six weeks ended November 29, 2003.
Under the 1997 AngioDynamics Stock Option Plan, options for 3.58 shares
were granted at $60,000 per share, options for .11 shares were forfeited
at $40,000 per share, and no options were exercised or expired during the
twenty-six weeks ended November 29, 2003.
In March 2003, the Board of Directors authorized the repurchase of up to
300,000 shares of the Company's common stock at an aggregate purchase
price of up to $3,000,000. The Company repurchased 37,400 shares of common
stock for approximately $417,000 during the twenty-six weeks ended
November 29, 2003. In aggregate, the Company has repurchased 74,234 shares
of common stock for approximately $716,000 under this program.
-14-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE I - COMMON STOCK (continued)
In June 2003, the Company's Board of Directors declared a cash dividend of
$.25 per outstanding share of the Company's common stock. The dividend was
distributed on August 1, 2003 to shareholders of record as of July 15,
2003. Future dividends are subject to Board of Directors' review of
operations and financial and other conditions then prevailing.
On October 22, 2002, the Company completed its plan to combine its two
former classes of common stock (Class A and Class B) into a single, newly
created class of common stock. The transaction was effected by merging a
newly formed subsidiary into E-Z-EM, with E-Z-EM continuing as the
surviving corporation in the merger. As a result of this merger: each
outstanding Class A share and each outstanding Class B share was converted
into one share of a newly created class of common stock of the Company;
the super-majority voting requirements contained in the Company's
certificate of incorporation, relating to the former Class A shares, were
eliminated and are not applicable to the Company's new class of common
stock; each holder of common stock now has one vote per share; and all
matters brought before the stockholders of the Company, other than the
removal of directors, are now determined by a majority vote.
NOTE J - OPERATING SEGMENTS
The Company is engaged in the manufacture and distribution of a wide
variety of products which are classified into two operating segments:
E-Z-EM products and AngioDynamics products. E-Z-EM products include X-ray
fluoroscopy products, CT imaging products, virtual colonoscopy products,
specialty diagnostic tests, and accessory medical products and devices.
The E-Z-EM segment also includes third-party contract manufacturing of
diagnostic contrast agents, pharmaceuticals, cosmetics and defense
decontaminants. AngioDynamics products include angiographic products and
accessories, dialysis products, PTA dilation catheters, thrombolytic
products, image-guided vascular access products, endovascular laser venous
system, and drainage products used in minimally invasive image-guided
therapeutic procedures to treat peripheral vascular disease and other
non-coronary disease.
-15-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE J - OPERATING SEGMENTS (continued)
The Company's chief operating decision maker utilizes operating segment
net earnings (loss) information in assessing performance and making
overall operating decisions and resource allocations. Information about
the Company's segments is as follows:
Thirteen weeks ended Twenty-six weeks ended
------------------------------ -------------------------------
November 29, November 30, November 29, November 30,
2003 2002 2003 2002
-------- ------- --------- ---------
(in thousands)
Net sales to external
customers
E-Z-EM products $ 25,287 $24,328 $ 47,929 $ 46,511
AngioDynamics products 11,651 8,572 22,066 16,669
-------- ------- --------- ---------
Total net sales to external
customers $ 36,938 $32,900 $ 69,995 $ 63,180
======== ======= ========= =========
Intersegment net sales
AngioDynamics products $ 200 $ 196 $ 415 $ 427
-------- ------- --------- ---------
Total intersegment net sales $ 200 $ 196 $ 415 $ 427
======== ======= ========= =========
Operating profit (loss)
E-Z-EM products $ 1,165 $ 671 $ 229 $ (1,004)
AngioDynamics products 1,187 794 2,130 1,354
Eliminations (18) 44 10 40
-------- ------- --------- ---------
Total operating profit $ 2,334 $ 1,509 $ 2,369 $ 390
======== ======= ========= =========
Net earnings (loss)
E-Z-EM products $ 1,181 $ 717 $ 547 $ (129)
AngioDynamics products 606 227 913 336
Eliminations (18) 44 10 40
-------- ------- --------- ---------
Total net earnings $ 1,769 $ 988 $ 1,470 $ 247
======== ======= ========= =========
November 29, May 31,
2003 2003
--------- ---------
(in thousands)
Assets
E-Z-EM products $ 115,671 $ 112,899
AngioDynamics products 28,816 26,000
Eliminations (29,662) (28,275)
--------- ---------
Total assets $ 114,825 $ 110,624
========= =========
-16-
E-Z-EM, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
November 29, 2003 and November 30, 2002
(unaudited)
NOTE K - CONTINGENCIES
On January 6, 2004, Diomed, Inc. filed an action entitled Diomed, Inc. vs.
AngioDynamics, Inc., civil action no. 04 10019 RGS in the U.S. District
Court for the District of Massachusetts. The complaint alleges that
AngioDynamics sells a kit for the treatment of varicose veins under the
name Endovascular Laser Venous System (the "ELVS Procedure Kit") and two
diode laser systems: the "Precision 980" Laser and the "Precision 810"
Laser, and conducts a training program for physicians in the use of the
ELVS Procedure Kit. The complaint alleges that these actions by
AngioDynamics infringed, and/or contributorily infringed, and/or induced
infringement by others of Diomed's U.S. patent no. 6,398,777, and that
these actions have caused, and continue to cause, Diomed to suffer
substantial damages. The complaint seeks preliminary and permanent
injunctive relief, compensatory and treble damages, reasonable attorneys'
fees, costs and interest. The Company has obtained a written opinion of
non-infringement from outside counsel and believes that the allegations in
the complaint are without merit and intends to vigorously defend the
action.
AngioDynamics has been named as a defendant in an action entitled San
---
Juanita Chapa, et. al plaintiffs vs. Christos Spohn Hospital Shoreline,
------------- ---------------------------------
et. al, defendants, cause no. 03-60961-1 filed in the County Court, Nueces
County, Texas on June 30, 2003. The complaint alleges that the defendants
negligently caused the death of a dialysis patient in the defendant
hospital. The complaint alleges specifically that AngioDynamics and two
other defendants, including AngioDynamics' supplier, Medcomp, designed,
manufactured, promoted, distributed and/or sold one or more portions of
the dialysis equipment (including catheters) used in the treatment of the
patient, and that the equipment was defective and unreasonably dangerous.
The complaint seeks money damages in an unspecified amount. Under
AngioDynamics' distribution agreement with Medcomp, Medcomp is required to
indemnify AngioDynamics against all its costs, expenses, its losses,
liabilities, expenses (including reasonable attorneys' fees) that relate
in any way to products covered by the agreement. AngioDynamics has
tendered the defense of this action to Medcomp. Medcomp has accepted
defense of the action, conditioned upon the identification of the catheter
used to treat the patient as a Medcomp product.
NOTE L - POTENTIAL TRANSACTION
In October 2003, the Company announced that it was considering a spin-off
and initial public offering of its wholly-owned subsidiary, AngioDynamics.
The Company has signed a letter of engagement with an investment banking
firm regarding the possible spin-off and public offering of AngioDynamics,
the initiation and timing of which will be subject to market and other
conditions, including receipt by the Company of a favorable private letter
ruling from the Internal Revenue Service as to the tax-free nature of the
contemplated spin- off. The Company anticipates this transaction occurring
in the first half of calendar 2004.
-17-
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 section entitled "Management's
Discussion and Analysis of Financial Condition and Results of Operations",
contains certain forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
are intended to be covered by the safe harbors created thereby. These statements
relate to future events or the Company's future financial performance and
involve known and unknown risks, uncertainties and other factors that may cause
the Company or its industry's actual results, levels of activity, performance or
achievements to be materially different from any future results, levels of
activity, performance or achievements expressed or implied by the
forward-looking statements. These risks and other factors include those listed
under "Management's Discussion and Analysis of Financial Condition and Results
of Operations - Risk Factors" and elsewhere in this Quarterly Report on Form
10-Q. In some cases, forward-looking statements may be identified by terminology
such as "may", "will", "should", "expects", "intends", "anticipates", "plans",
"believes", "seeks", "estimates", "predicts", "potential", "continue" or
variations of such terms or similar expressions. These statements are only
predictions. In evaluating these statements, readers should specifically
consider various factors, including the risks outlined under "Management's
Discussion and Analysis of Financial Condition and Results of Operations - Risk
Factors". These factors may cause the Company's actual results to differ
materially from any forward-looking statement.
Although the Company believes 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 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 the Company or any other person
that the objectives and plans of the Company will be achieved.
Quarters ended November 29, 2003 and November 30, 2002
------------------------------------------------------
The Company's quarters ended November 29, 2003 and November 30, 2002 both
represent thirteen weeks.
Results of Operations
---------------------
Segment Overview
----------------
The Company operates in two industry segments: E-Z-EM products and AngioDynamics
products. The E-Z-EM operating segment includes X-ray fluoroscopy products, CT
imaging products, virtual colonoscopy products, specialty diagnostic tests, and
accessory medical products and devices. The E-Z-EM segment also includes third-
party contract manufacturing of diagnostic contrast agents, pharmaceuticals,
cosmetics and defense decontaminants. The AngioDynamics operating segment
includes angiographic products and accessories, dialysis products, PTA dilation
catheters, thrombolytic products, image-guided vascular access products,
endovascular laser venous systems, and drainage products used in minimally
-18-
invasive image-guided therapeutic procedures to treat peripheral vascular
disease and other non-coronary disease.
The following table sets forth certain financial information with respect to the
Company's operating segments:
E-Z-EM AngioDynamics Eliminations Total
------ ------------- ------------ -----
(in thousands)
Quarter ended November 29, 2003
-------------------------------
Unaffiliated customer sales $25,287 $11,651 -- $36,938
Intersegment sales -- 200 ($200) --
Gross profit (loss) 10,475 6,092 (18) 16,549
Operating profit (loss) 1,165 1,187 (18) 2,334
Quarter ended November 30, 2002
-------------------------------
Unaffiliated customer sales $24,328 $ 8,572 -- $32,900
Intersegment sales -- 196 ($196) --
Gross profit 10,235 4,793 44 15,072
Operating profit 671 794 44 1,509
E-Z-EM Products
E-Z-EM segment operating profit for the current quarter increased by $494,000.
The current quarter included $628,000 in plant closing and operational
restructuring costs related to the planned closing, later this fiscal year, of
the Company's device manufacturing facility in San Lorenzo, Puerto Rico, as well
as its heat-sealing operation in Westbury, New York. After the realignment, the
Company will maintain three core manufacturing sites; Westbury, New York and
Montreal, Canada for its E-Z-EM segment and Queensbury, New York for its
AngioDynamics segment. An expected charge to earnings of $1,900,000 (inclusive
of the $572,000 and $628,000 charges for the first and second quarters,
respectively), mainly severance related, will be recorded in the current year as
a result of this program.
Excluding the effect of the planned closing of operations discussed above,
E-Z-EM segment operating profit increased by $1,122,000 due to increased sales
and gross profit and decreased operating expenses. Net sales increased 4%, or
$959,000, due primarily to a decline in distributor rebates, resulting from a
shift in sales from products under contract with significant discounts to
products not currently under contract or to products under contract with lower
discounts. On a product line basis, the net sales increase resulted from
increased sales of contract manufacturing products of $674,000 and increased
sales of CT imaging contrast products, particularly the Company's CT Smoothie
lines, and CT injector systems totaling $605,000, partially offset by decreased
sales of X-ray fluoroscopy products of $278,000. Price increases, excluding the
decline in rebates, had minimal effect on net sales for the current quarter.
Gross profit, expressed as a percentage of net sales, decreased to 41% for the
current quarter, from 42% for the comparable quarter of the prior year, due
primarily to increased raw material costs and unfavorable changes in sales
product mix, partially offset by the decline in rebates. Excluding the
aforementioned plant closing costs, operating expenses decreased $882,000 due to
decreased selling and marketing promotional activities and costs associated with
the Company's common stock recapitalization of $106,000 in the comparable period
of the prior year.
AngioDynamics Products
AngioDynamics segment operating profit improved by $393,000 in the current
quarter due to increased sales and gross profit, partially offset by increased
operating expenses. Net sales increased 36%, or $3,079,000, due primarily to the
-19-
introduction of new products in the prior year and the growth in existing
products resulting, in large part, from the expansion in the domestic sales
force. Successful new products, introduced last fiscal year, included the Dura-
Flow(TM) Chronic Dialysis catheter and the Endovascular Laser Venous System for
the treatment of varicose veins. Price increases had minimal effect on net sales
for the current quarter. Gross profit, expressed as a percentage of net sales,
decreased to 51% for the current quarter, from 55% for the comparable quarter of
the prior year. Gross profit for the comparable quarter last year was favorably
affected by an inventory valuation adjustment of $174,000. Gross profit for the
current quarter was adversely affected by sales price erosion, increased
provision for inventory reserves of $90,000 and manufacturing overhead cost
increases, partially offset by decreased freight costs. Operating expenses
increased $906,000 due, in large part, to the continued expansion of the
domestic sales force, increased activities undertaken to generate an increase in
net sales, investment in new product introductions and increased administrative
and research and development expenses.
Consolidated Results of Operations
----------------------------------
For the quarter ended November 29, 2003, the Company reported net earnings of
$1,769,000, or $.17 per common share on both a basic and diluted basis, as
compared to net earnings of $988,000, or $.10 and $.09 per common share on a
basic and diluted basis, respectively, for the comparable period of last year.
Results for the current quarter were favorably affected by increased sales and
gross profit in both segments, partially offset by increased operating expenses.
Results for the current quarter included $628,000, or $.05 per basic share, in
plant closing and operational restructuring costs previously disclosed in the
segment overview.
Net sales for the quarter ended November 29, 2003 increased 12%, or $4,038,000,
as compared to the quarter ended November 30, 2002, due to increased sales of
AngioDynamics products of $3,079,000 and E-Z-EM products of $959,000, which
resulted from the factors previously disclosed in the segment overview. Price
increases, excluding the change in rebates, had minimal effect on net sales for
the current quarter. Net sales in international markets, including direct
exports from the U.S., increased 10%, or $868,000, for the current quarter from
the comparable period of last year due primarily to increased sales of contract
manufacturing products of $674,000 and CT imaging contrast and injector systems
of $131,000.
Gross profit, expressed as a percentage of net sales, declined to 45% for the
current quarter from 46% for the comparable quarter of the prior year due to
reduced gross profit as a percentage of net sales in both the E-Z-EM and
AngioDynamics segments, which resulted from the factors previously disclosed in
the segment overview.
Selling and administrative ("S&A") expenses were $11,589,000 for the quarter
ended November 29, 2003 compared to $11,789,000 for the quarter ended November
30, 2002. This decrease of $200,000, or 2%, was due to decreased E-Z-EM S&A
expenses of $840,000, partially offset by increased AngioDynamics S&A expenses
of $640,000. Decreased E-Z-EM S&A expenses can be attributed to decreased
selling and marketing promotional activities and costs associated with the
Company's common stock recapitalization of $106,000 in the comparable period of
the prior year. Increased AngioDynamics S&A expenses resulted, in large part,
from the continued expansion of its domestic sales force, costs of increased
activities undertaken to generate an increase in net sales, and investment in
new product introductions.
Research and development ("R&D") expenditures remained at 5% of net sales and
increased 21% for the current quarter to $1,998,000 from $1,658,000 for the
comparable quarter of the prior year due primarily to increased AngioDynamics
R&D expenses of $266,000. The increase in AngioDynamics R&D expenses is due
-20-
primarily to increased personnel costs related to the hiring of an in-house
intellectual property counsel to facilitate the registration, maintenance and
defense of AngioDynamics' intellectual property assets and increased personnel
in both the research and development departments of AngioDynamics. Of the R&D
expenditures for the current quarter, approximately 43% relate to AngioDynamics
projects, 29% to X-ray fluoroscopy and CT imaging projects, 18% to general
regulatory costs, 6% to virtual colonoscopy projects, 3% to accessory medical
products and devices and 1% to other projects. R&D expenditures are expected to
continue at approximately current levels for the remainder of this fiscal year.
Other income, net of other expenses, totaled $449,000 of income for the current
quarter compared to $97,000 of income for the comparable period of last year.
This improvement was due primarily to gains on the sales of equity investments
totaling $336,000.
For the quarter ended November 29, 2003, the Company's effective tax rate of 36%
differed from the Federal statutory tax rate of 34% due primarily to losses
incurred at the Company's Puerto Rican subsidiary, which are subject to lower
tax rates, and non-deductible expenses, partially offset by the utilization of
previously unrecorded net operating and capital loss carryforwards. The losses
incurred at the Company's Puerto Rican subsidiary resulted from the plan to
close this facility and to outsource these operations. For the quarter ended
November 30, 2002, the Company's effective tax rate of 39% differed from the
Federal statutory tax rate of 34% due to non-deductible expenses.
Six months ended November 29, 2003 and November 30, 2002
--------------------------------------------------------
The Company's six months ended November 29, 2003 and November 30, 2002 both
represent twenty-six weeks.
Results of Operations
---------------------
Segment Overview
----------------
E-Z-EM AngioDynamics Eliminations Total
------ ------------- ------------ -----
(in thousands)
Six months ended November 29, 2003
----------------------------------
Unaffiliated customer sales $ 47,929 $22,066 -- $69,995
Intersegment sales -- 415 ($415) --
Gross profit 18,881 11,627 10 30,518
Operating profit 229 2,130 10 2,369
Six months ended November 30, 2002
----------------------------------
Unaffiliated customer sales $ 46,511 $16,669 -- $63,180
Intersegment sales -- 427 ($427) --
Gross profit 18,568 8,961 40 27,569
Operating profit (loss) (1,004) 1,354 40 390
E-Z-EM Products
E-Z-EM segment operating results for the current period improved by $1,233,000.
Both the current period and the comparative period of the prior year included
charges for restructuring and repositioning the Company. The current period
included $1,200,000 in plant closing and operational restructuring costs related
to the planned closing, later this fiscal year, of the Company's device
manufacturing facility in San Lorenzo, Puerto Rico, as well as its heat-sealing
operation in Westbury, New York. Included in the comparable period of last year
were $688,000 in costs associated with the Company's common stock
recapitalization, which was completed in the second quarter.
-21-
Excluding the effect of the planned closing of operations and the common stock
recapitalization costs discussed above, E-Z-EM segment operating results
improved by $1,745,000 due to increased sales and gross profit and decreased
operating expenses. Net sales increased 3%, or $1,418,000, due, in large part,
to a decline in distributor rebates, resulting from a shift in sales from
products under contract with significant discounts to products not currently
under contract or to products under contract with lower discounts. On a product
line basis, the net sale increase resulted from increased sales of CT imaging
contrast products, particularly the Company's CT Smoothie lines, and CT injector
systems totaling $1,518,000. Price increases, excluding the decline in rebates,
had minimal effect on net sales for the current period. Gross profit, expressed
as a percentage of net sales, decreased to 39% for the current period, from 40%
for the comparable period of the prior year, due primarily to increased raw
material costs and unfavorable changes in sales product mix, partially offset by
the decline in rebates and decreased freight costs affecting the Company's
Westbury operations. Excluding the aforementioned plant closing and
recapitalization costs, operating expenses decreased $1,432,000 due to decreased
selling and marketing promotional activities and decreased severance costs of
$301,000.
AngioDynamics Products
AngioDynamics segment operating profit improved by $776,000 in the current
period due to increased sales and gross profit, partially offset by increased
operating expenses. Net sales increased 32%, or $5,397,000, due primarily to the
introduction of new products in the prior year and the growth in existing
products resulting, in large part, from the expansion in the domestic sales
force. Successful new products, introduced last fiscal year, included the Dura-
Flow(TM) Chronic Dialysis catheter and the Endovascular Laser Venous System for
the treatment of varicose veins. Price increases had minimal effect on net sales
for the current period. Gross profit, expressed as a percentage of net sales,
was 52% for both the current period and the comparable period of the prior year.
Decreased freight costs offset the effects of raw material and manufacturing
overhead cost increases. Operating expenses increased $1,890,000 due, in large
part, to the continued expansion of the domestic sales force, increased
activities undertaken to generate an increase in net sales, investment in new
product introductions and increased administrative and research and development
expenses.
Consolidated Results of Operations
----------------------------------
For the six months ended November 29, 2003, the Company reported net earnings of
$1,470,000, or $.14 per common share on both a basic and diluted basis, compared
to net earnings of $247,000, or $.02 per common share on both a basic and
diluted basis, for the comparable period of last year. Results for the current
period were favorably affected by increased sales and gross profit in both
segments, partially offset by increased operating expenses. Results for the
current period included $1,200,000, or $.10 per basic share, in plant closing
and operational restructuring costs previously disclosed in the segment
overview. Results for the comparative period of last year included $688,000, or
$.07 per basic share, in costs associated with the Company's common stock
recapitalization.
Net sales for the six months ended November 29, 2003 increased 11%, or
$6,815,000, compared to the six months ended November 30, 2002 due to increased
sales of AngioDynamics products of $5,397,000 and E-Z-EM products of $1,418,000,
which resulted from the factors previously disclosed in the segment overview.
Price increases, excluding the change in rebates, had minimal effect on net
sales for the current period. Net sales in international markets, including
direct exports from the U.S., increased 3%, or $554,000, for the current period
from the comparable period of last year due to increased sales of CT imaging
contrast and injector systems of $216,000, X-ray fluoroscopy products of
$138,000, specialty diagnostic tests of $131,000 and contract manufacturing
products of $119,000.
-22-
Gross profit expressed as a percentage of net sales was 44% for both the current
period and the comparable period of the prior year. Decreased gross profit, as a
percentage of net sales, in the E-Z-EM segment offset the effect of increased
contribution from the AngioDynamics segment. The reduced gross profit in the E-
Z-EM segment resulted from the factors previously disclosed in the segment
overview.
S&A expenses were $23,147,000 for the six months ended November 29, 2003
compared to $23,816,000 for the six months ended November 30, 2002. This
decrease of $669,000, or 3%, for the current period was due to decreased E-Z-EM
S&A expenses of $2,115,000, partially offset by increased AngioDynamics S&A
expenses of $1,446,000. Decreased E-Z-EM S&A expenses can be attributed to: i)
decreased selling and marketing promotional activities; ii) costs associated
with the Company's common stock recapitalization of $688,000 in the comparable
period of the prior year; and iii) decreased severance costs of $386,000.
Increased AngioDynamics S&A expenses resulted, in large part, from the continued
expansion of its domestic sales force, costs of increased activities undertaken
to generate an increase in net sales, and investment in new product
introductions.
R&D expenditures remained at 5% of net sales and increased 17% for the current
period to $3,802,000 from $3,247,000 for the comparable period of the prior year
due primarily to increased AngioDynamics R&D expenses of $444,000, general
regulatory costs of $158,000 and accessory medical products and devices of
$154,000, partially offset by decreased spending relating to X-ray fluoroscopy
and CT imaging projects of $245,000. The increase in AngioDynamics R&D expenses
is due primarily to increased personnel costs related to the hiring of an in-
house intellectual property counsel to facilitate the registration, maintenance
and defense of AngioDynamics' intellectual property assets and increased
personnel in both the research and development departments of AngioDynamics. Of
the R&D expenditures for the current period, approximately 43% relate to
AngioDynamics projects, 29% to X-ray fluoroscopy and CT imaging projects, 17% to
general regulatory costs, 6% to virtual colonoscopy projects, 4% to accessory
medical products and devices and 1% to other projects.
Other income, net of other expenses, totaled $415,000 of income for the current
period compared to $414,000 of income for the comparable period of last year.
Gains on the sales of equity investments totaling $336,000 offset decreases in
foreign currency exchange gains of $297,000 and increased interest expense of
$46,000, resulting, in large part, from the financing of the AngioDynamics
facility expansion.
For the six months ended November 29, 2003, the Company's effective tax rate of
47% differed from the Federal statutory tax rate of 34% due primarily to losses
incurred at the Company's Puerto Rican subsidiary, which are subject to lower
tax rates, and non-deductible expenses, partially offset by the utilization of
previously unrecorded net operating and capital loss carryforwards. For the six
months ended November 30, 2002, the Company's unusually high effective tax rate
of 69% differed from the Federal statutory tax rate of 34% due to non-deductible
expenses, primarily related to the Company's common stock recapitalization.
Liquidity and Capital Resources
-------------------------------
For the six months ended November 29, 2003, cash dividends, capital
expenditures, the purchase of treasury stock, repayments of debt and working
capital were funded by cash provided by operations and cash reserves. The
Company's policy has generally been to fund operations and capital requirements
without incurring significant debt. However, the Company did elect to finance
the AngioDynamics facility expansion. At November 29, 2003, debt (notes payable,
current maturities of long-term debt and long-term debt) was $4,180,000
(including $3,325,000 relating to the financing of the AngioDynamics facility
expansion), as compared to $4,369,000 at May 31, 2003. The Company has available
$4,540,000
-23-
under two bank lines of credit, of which no amounts were outstanding at November
29, 2003.
At November 29, 2003, approximately $16,038,000, or 14%, of the Company's assets
consisted of cash and cash equivalents and short-term debt and equity
securities. The current ratio was 4.75 to 1, with working capital of
$60,812,000, at November 29, 2003, compared to a current ratio of 4.95 to 1,
with working capital of $60,123,000, at May 31, 2003. The Company believes that
its cash reserves as of November 29, 2003, cash generated from operations and
existing lines of credit will provide sufficient liquidity to meet its current
obligations for the next 12 months.
During fiscal 2003, the Company began the expansion of the AngioDynamics
headquarters and manufacturing facility in Queensbury, New York, and, as of
November 29, 2003, had expended approximately $3,463,000 on this project. The
Company expects this expansion to cost approximately $3,500,000 and to be
completed during the third fiscal quarter. This expansion is being financed
principally with Industrial Revenue Bonds (the "Bonds") issued by the Warren and
Washington Counties Industrial Development Agency (the "Agency") aggregating
$3,500,000. The proceeds of the Bonds are being advanced, as construction
occurs, pursuant to a Building Loan Agreement by and among the Agency, the
Trustee, a bank (the "Bank") and the Company. As of November 29, 2003, the
advances aggregated $3,280,000 with the remaining proceeds of $220,000
classified as restricted cash. The Bonds re-price every seven days and are
resold by a Remarketing Agent. The Bonds bear interest based on the market rate
on the date the Bonds are resold (1.30% per annum at November 29, 2003) and
require quarterly interest payments and quarterly principal payments ranging
from $25,000 to $65,000 through May 2022. The Company entered into an interest
rate swap with the Bank to convert the variable interest rate to a fixed
interest rate of 4.45% per annum. The principal payments on the Bonds are
secured by a letter of credit with the Bank and a first mortgage on the land,
building and equipment relating to the facility.
In March 2003, the Board of Directors authorized the repurchase of up to 300,000
shares of the Company's common stock at an aggregate purchase price of up to
$3,000,000. The Company repurchased 37,400 shares of common stock for
approximately $417,000 during the six months ended November 29, 2003. In
aggregate, the Company has repurchased 74,234 shares of common stock for
approximately $716,000 under this program.
In June 2003, the Company's Board of Directors declared a cash dividend of $.25
per outstanding share of the Company's common stock. The dividend was paid on
August 1, 2003 to shareholders of record as of July 15, 2003. Future dividends
are subject to Board of Directors' review of operations and financial and other
conditions then prevailing.
Critical Accounting Policies and Use of Estimates
-------------------------------------------------
The Company's significant accounting policies are summarized in Note A to the
Consolidated Financial Statements included in the Company's fiscal 2003 Annual
Report on Form 10-K. While all of these significant accounting policies affect
the reporting of its financial condition and results of operations, the Company
views certain of these policies as critical. Policies determined to be critical
are those policies that have the most significant impact on the Company's
financial statements and require management to use a greater degree of judgment
and/or estimates. Actual results may differ from those estimates.
The Company believes that given current facts and circumstances, it is unlikely
that applying any other reasonable judgment or estimate methodologies would
cause a material effect on the Company's consolidated results of operations,
financial position or liquidity for the periods presented in this report. The
accounting policies identified as critical are as follows:
-24-
Revenue Recognition
The Company recognizes revenues in accordance with generally accepted accounting
principles as outlined in Staff Accounting Bulletin No. 101, which requires that
four basic criteria be met before revenue can be recognized: (1) persuasive
evidence of an arrangement exists; (2) the price is fixed or determinable; (3)
collectibility is reasonably assured; and (4) product delivery has occurred or
services have been rendered. Decisions relative to criterion (3) regarding
collectibility are based upon management judgments, as discussed under "Accounts
Receivable" below, and should conditions change in the future and cause
management to determine this criterion is not met, the Company's results of
operations may be affected. The Company recognizes revenue on the date the
product is shipped, which is when title passes to the customer. Shipping and
credit terms are negotiated on a customer-by-customer basis. E-Z-EM products are
shipped primarily to distributors at an agreed upon list price. The distributor
then resells the products primarily to hospitals and, depending upon contracts
between the Company, the distributor and the hospital, the distributor may be
entitled to a rebate. The Company deducts all rebates from sales and has a
provision for rebates based on historical information for all rebates that have
not yet been submitted to the Company by the distributors. All customer returns
must be pre-approved by the Company via a returned goods authorization. The
Company records revenue on warranties and extended warranties on a straight-line
basis over the term of the related warranty contracts, which generally cover one
year. Deferred revenues related to warranties and extended warranties are
$351,000 at November 29, 2003. Service costs are expensed as incurred.
Accounts Receivable
Accounts receivable, principally trade, are generally due within 30 to 60 days
and are stated at amounts due from customers net of an allowance for doubtful
accounts. The Company performs ongoing credit evaluations of its customers and
adjusts credit limits based upon payment history and the customers' current
credit worthiness, as determined by a review of their current credit
information. The Company continuously monitors aging reports, collections and
payments from customers, and maintains a provision for estimated credit losses
based upon historical experience and any specific customer collection issues
that have been identified. While such credit losses have historically been
within expectations and the provisions established, the Company cannot guarantee
the same credit loss rates will be experienced in the future. The Company writes
off accounts receivable when they become uncollectible. Concentration risk
exists relative to the Company's accounts receivable, as 27% of the Company's
total accounts receivable balance at November 29, 2003 is concentrated in one
distributor. While the accounts receivable related to this distributor may be
significant, the Company does not believe the credit loss risk to be significant
given the distributor's consistent payment history.
Income Taxes
In preparing the Company's financial statements, income tax expense is
calculated for each jurisdiction in which the Company operates. This involves
estimating actual current taxes due plus assessing temporary differences arising
from differing treatment for tax and accounting purposes that are recorded as
deferred tax assets and liabilities. Deferred tax assets are periodically
evaluated to determine their recoverability (based primarily on the Company's
ability to generate future taxable income), and where their recovery is not
likely, a valuation allowance is established and a corresponding additional tax
expense is recorded in the Company's statement of earnings. If actual results
differ from the Company's estimates due to changes in assumptions, the provision
for income taxes could be materially affected.
-25-
Inventories
The Company values its inventory at the lower of the actual cost to purchase
and/or manufacture (on the first-in, first-out method) or the current estimated
market value. On an quarterly basis, inventory quantities on hand are reviewed
and an analysis of the provision for excess and obsolete inventory is performed
based primarily on product expiration dating and the Company's estimated sales
forecast, which is based on sales history and anticipated future demand. The
Company's estimates of future product demand may prove to be inaccurate and the
Company may understate or overstate the provision required for excess and
obsolete inventory. Accordingly, any significant unanticipated changes in demand
could have a significant impact on the value of the Company's inventory and
results of operations.
Property, Plant and Equipment
Property, plant and equipment is stated at cost, less accumulated depreciation,
and is depreciated principally using the straight-line method over the estimated
useful lives of the assets. Useful lives are based on management's estimates of
the period over which the assets will generate revenue. Any change in conditions
that would cause management to change its estimate of the useful lives of a
group or class of assets may significantly affect depreciation expense on a
prospective basis.
Effects of Recently Issued Accounting Pronouncements
----------------------------------------------------
As of July 1, 2003, the Company adopted SFAS No. 149, "Amendment of Statement
133 on Derivative Instruments and Hedging Activities." SFAS No. 149 amends and
clarifies accounting for derivative instruments, including certain derivative
instruments embedded in other contracts, and for hedging activities under SFAS
No. 133. The adoption of this statement has had no current effect on the
Company's financial position or results of operations.
As of August 31, 2003, the Company adopted SFAS No. 150, "Accounting for Certain
Financial Instruments with Characteristics of Both Liabilities and Equity." SFAS
No. 150 changes the accounting for certain financial instruments that, under
previous guidance, issuers could account for as equity. The new statement
requires that those instruments be classified as liabilities in statements of
financial position. The adoption of SFAS No. 150 has had no current effect on
the Company's financial position or results of operations.
As of August 31, 2003, the Company adopted FASB Interpretation No. 46 ("FIN No.
46"), "Consolidation of Variable Interest Entities." In general, a variable
interest entity is a corporation, partnership, trust, or any other legal
structure used for business purposes that either (a) does not have equity
investors with voting rights or (b) has equity investors that do not provide
sufficient financial resources for the entity to support its activities. A
variable interest entity often holds financial assets, including loans or
receivables, real estate or other property. A variable interest entity may be
essentially passive or it may engage in activities on behalf of another company.
Until now, a company generally has included another entity in its consolidated
financial statements only if it controlled the entity through voting interests.
FIN No. 46 changes that by requiring a variable interest entity to be
consolidated by a company if that company is subject to a majority of the risk
of loss from the variable interest entity's activities or entitled to receive a
majority of the entity's residual returns or both. The adoption of FIN No. 46
has had no current effect on the Company's consolidated financial condition or
results of operations.
As of August 31, 2003, the Company adopted Emerging Issues Task Force ("EITF")
00-21, "Revenue Arrangements with Multiple Deliverables". EITF 00-21 provides
-26-
that revenue arrangements with multiple deliverables should be divided into
separate units of accounting if certain criteria are met. The consideration of
the arrangement should be allocated to the separate units of accounting based on
their relative fair values, with different provisions if the fair value is
contingent on delivery of specified items or performance conditions. Applicable
revenue criteria should be considered separately for each separate unit of
accounting. The adoption of EITF 00-21 has had no current effect on the
Company's financial position and results of operations.
Risk Factors
------------
The risks described below are not the only ones facing the Company. The
Company's business is also subject to the risks that affect many other companies
in its industry, such as competition, technology, results of pending or future
clinical trials, overall economic conditions, general market conditions, foreign
currency exchange rate fluctuations and international operations. Additional
risks not currently known to management or that it believes are immaterial also
may impair the Company's business operations and its liquidity.
Price pressure in the healthcare industry is expected to continue to increase.
Public and private sector programs designed to reduce healthcare costs exist in
the U.S. and in many other countries where the Company does business. Such
policies and programs require healthcare providers to focus on the delivery of
medical services on the most cost-effective basis. New products developed by the
Company may offer the potential to improve productivity and reduce costs, but
must meet the aforementioned regulatory requirements prior to commercialization.
Even after regulatory approval is obtained for such products, demand may be
limited until reimbursement policies are established by private and public
third- party payers. These factors can combine to create downward pressure on
product prices in the market in general.
Pricing flexibility is further constrained by the formation of large Group
Purchasing Organizations ("GPO" or "GPOs") - combinations of hospitals and other
large customers to combine purchasing power. Due to the multi-year term of
typical GPO contracts, the Company's ability to pass along base cost increases
through increased prices is limited. Consolidation in the healthcare industry
has also resulted in a broader product range in typical GPO contracts.
Transactions with GPOs are often larger, more complex, and involve more
long-term contracts than in the past. GPOs' enhanced purchasing power may
continue to increase the pressure on product pricing in the market as a whole.
Several GPOs have executed contracts with the Company's market competitors,
which exclude the Company, and other GPOs may do so in the future. In many
cases, the Company has continued to sell to individual members of these GPOs on
a direct basis, by lowering its pricing. While the Company continues to sell to
individual members of these GPOs on a direct basis, the contracts, if enforced
against the GPO members, may adversely affect the Company's sales in the future.
A significant part of the Company's business is dependent on its intellectual
property.
The Company's continued ability to market and further develop its EmpowerCT(R)
injector system - a product important to its continued growth and the only CT
injector on the market to include patented EDA(TM) technology designed to aid in
the detection of contrast extravasations - is dependent on the Company's ability
to protect its patent rights in the product. The CT injector market is
characterized by strong intellectual property ("IP") positions and aggressive IP
protection strategies among all principal competitors. These factors combine to
make the introduction of new differentiating technology and other product
enhancements a slow and costly process. The Company continues to take what it
-27-
believes to be appropriate measures to protect its IP position in this area, but
challenges to its patents and copyrights can not be discounted.
The Company holds a number of other issued U.S. and foreign patents and has
filed a number of U.S. and counterpart patent applications in other countries.
There can be no assurance that the Company's U.S. and foreign issued patents or
patent applications will offer any protection or that they will not be
challenged, invalidated or circumvented. In addition, there can be no assurance
that competitors will not obtain patents that will prevent, limit or interfere
with the Company's ability to make, use or sell its products either in the U.S.
or in international markets.
The Company's success will be increasingly dependent on the development,
manufacturing and marketing of new products.
An increasing portion of the Company's revenues are derived from new products,
both internally developed and externally sourced. Continued success requires
effective product development, regulatory approval, production and marketing of
new products. The Company obtains marketing rights to new products by partnering
with other companies who seek to penetrate the markets which the Company serves.
Typically these partnerships involve manufacturing agreements under which the
Company has the right to manufacture the product if there is a failure to
supply. However, the failure to manufacture and deliver goods on a timely basis,
control costs, assess market needs or meet market demand can have an adverse
effect on the Company's success in the future.
The market dynamics and competitive environment in the healthcare industry are
subject to rapid change, factors which may affect the Company's operations.
The Company believes that government regulation, private sector programs and
reimbursement policies will continue to change the worldwide healthcare
industry, potentially resulting in further business consolidations and
alliances. As such, the market dynamics and competitive environment are subject
to rapid change, factors which may affect the Company's growth plans and
operating results.
The adoption rate of Virtual Colonoscopy as a screening modality for colon
cancer has been slower than anticipated.
The Company's growth strategy involves investing a portion of its financial,
management and other resources on the further development of a unique product
set for use in Virtual Colonoscopy. However, to date, the adoption rate of
Virtual Colonoscopy as a screening modality for colon cancer has been slower
than anticipated. The Company believes this is principally due to the present
lack of private and public reimbursement standards for Virtual Colonoscopy
screening. Additionally, the American Cancer Society ("ACS") has not yet
included Virtual Colonoscopy in its published screening guidelines for colon
cancer, believing the evidence of its efficacy is insufficient at this time.
Together, these and other factors contribute to the uncertainly surrounding the
evolution of the Virtual Colonoscopy market and the Company's position in it.
The market potential for Reactive Skin Decontamination Lotion is uncertain.
The market potential for Reactive Skin Decontamination Lotion ("RSDL"), a
product for which the Company has exclusive manufacturing rights, is subject to
a number of uncertainties. One factor is the nature of the military procurement
process itself -- a lengthy bureaucratic process that often requires product
modifications before substantial orders are placed. Another factor is
uncertainty surrounding the threat from chemical weapons as instruments of
terror, making it difficult to quantify the potential of the civilian emergency
service organization market. These and other factors may have an impact on RSDL
sales in the future.
-28-
The Company's AngioDynamics business may be harmed if interventional
cardiologists begin to perform the procedures that interventional radiologists
and vascular surgeons currently perform.
The Company markets and sells its AngioDynamics products primarily to
interventional radiologists and vascular surgeons, who currently perform the
majority of interventional procedures. Many of AngioDynamics' competitors have
focused their sales efforts on the cardiology market for interventional
procedures. If cardiologists begin to perform the procedures currently performed
by interventional radiologists and vascular surgeons, AngioDynamics' competitors
may have advantages over AngioDynamics for sales to cardiologists. Consequently,
AngioDynamics' revenues may decline and its business may be harmed.
The Company's products require regulatory approval, which can be expensive and
time-consuming, and may not be granted.
The Company's products are subject to extensive regulation in the U.S. by the
Food & Drug Administration ("FDA"), as well as certain state authorities.
Similar regulatory oversight is in place in foreign markets where the Company
operates. The Company must obtain either 510(k) clearance or premarket approval
from the FDA and respective foreign regulatory bodies before it can market
products in these markets. The process of obtaining such approvals or clearances
can be lengthy and expensive, requiring the Company to demonstrate the safety
and efficacy of new products. There can be no assurance that all approvals and
clearances sought by the Company will be granted on a timely basis, if at all.
The Company is presently awaiting 510(k) market clearance from the FDA for
several line extension and next generation medical devices. This process usually
takes from four to 12 months, but may take significantly longer. Premarket
approval generally takes from one to three years, but may take longer. The
Company's approvals and clearances may be revoked by the FDA if safety or
effectiveness problems develop.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
----------------------------------------------------------
The Company is exposed to market risk from changes in foreign currency exchange
rates and, to a much lesser extent, interest rates on investments and financing,
which could impact results of operations and financial position. Although the
Company entered into an interest rate swap with a bank to limit its exposure to
interest rate change market risk on its variable interest rate financing, it
does not currently engage in any other hedging or other market risk management
tools. There have been no material changes with respect to market risk
previously disclosed in the fiscal 2003 Annual Report on Form 10-K.
Foreign Currency Exchange Rate Risk
-----------------------------------
The financial reporting of the Company's international subsidiaries is
denominated in currencies other than the U.S. dollar. Since the functional
currency of the Company's international subsidiaries is the local currency,
foreign currency translation adjustments are accumulated as a component of
accumulated other comprehensive income (loss) in stockholders' equity. Assuming
a hypothetical aggregate change in the exchange rates of foreign currencies
versus the U.S. dollar of 10% at November 29, 2003, the Company's assets and
liabilities would increase or decrease by $3,293,000 and $523,000, respectively,
and the Company's net sales and net earnings would increase or decrease by
$2,326,000 and $230,000, respectively, on an annual basis.
The Company also maintains intercompany balances and loans receivable with
subsidiaries with different local currencies. These amounts are at risk of
foreign exchange losses if exchange rates fluctuate. Assuming a hypothetical
aggregate change in the exchange rates of foreign currencies versus the U.S.
-29-
dollar of 10% at November 29, 2003, pre-tax earnings would be favorably or
unfavorably impacted by approximately $428,000 on an annual basis.
Interest Rate Risk
------------------
At November 29, 2003, the Company was exposed to interest rate change market
risk with respect to its investments in tax-free municipal bonds in the amount
of $5,425,000. The bonds bear interest at a floating rate established weekly.
For the six months ended November 29, 2003, the after-tax interest rate on the
bonds approximated 1.0%. Each 100 basis point (1%) fluctuation in interest rates
will increase or decrease interest income on the bonds by approximately $54,000
on an annual basis.
As the Company's principal amount of fixed interest rate financing approximated
$855,000 at November 29, 2003, a change in interest rates would not materially
impact results of operations or financial position. At November 29, 2003, the
Company has outstanding variable interest rate financing of approximately
$3,325,000 in connection with the AngioDynamics facility expansion. The Company
has limited its exposure to interest rate change market risk by entering into an
interest rate swap agreement with a bank under which the Company agreed to pay
the bank a fixed annual interest rate of 4.45% and the bank assumed the
Company's variable interest payment obligations under the financing.
Item 4. Controls and Procedures
-----------------------
Evaluation of Disclosure Controls and Procedures
As of the end of the period covered by this report, the Company's management,
under the supervision and with the participation of the Company's Chief
Executive Officer and Chief Financial Officer, evaluated the effectiveness of
the design and operation of the Company's 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 the Company's disclosure controls and procedures as of
the end of the period covered by this report have been designed and are
functioning effectively to provide reasonable assurance that the information
required to be disclosed by the Company (including its consolidated
subsidiaries) 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 Securities and Exchange Commission's rules and forms. The
Company believes that a controls system, no matter how well designed and
operated, cannot provide absolute assurance that the objectives of the controls
system are met, and no evaluation of controls can provide absolute assurance
that all control issues and instances of fraud, if any, within a company have
been detected.
Changes in Internal Controls over Financial Reporting
No significant changes were made in the Company's internal controls over
financial reporting or in other factors that could significantly affect these
controls during the quarter ended November 29, 2003.
-30-
E-Z-EM, Inc. and Subsidiaries
Part II: Other Information
Item 1. Legal Proceedings
-----------------
On January 6, 2004, Diomed, Inc. filed an action entitled Diomed, Inc. vs.
AngioDynamics, Inc., civil action no. 04 10019 RGS in the U.S. District Court
for the District of Massachusetts. The complaint alleges that AngioDynamics
sells a kit for the treatment of varicose veins under the name Endovascular
Laser Venous System (the "ELVS Procedure Kit") and two diode laser systems: the
"Precision 980" Laser and the "Precision 810" Laser, and conducts a training
program for physicians in the use of the ELVS Procedure Kit. The complaint
alleges that these actions by AngioDynamics infringed, and/or contributorily
infringed, and/or induced infringement by others of Diomed's U.S. patent no.
6,398,777, and that these actions have caused, and continue to cause, Diomed to
suffer substantial damages. The complaint seeks preliminary and permanent
injunctive relief, compensatory and treble damages, reasonable attorneys' fees,
costs and interest. The Company has obtained a written opinion of non-
infringement from outside counsel and believes that the allegations in the
complaint are without merit and intends to vigorously defend the action.
AngioDynamics has been named as a defendant in an action entitled
San Juanita Chapa, et. al plaintiffs vs. Christos Spohn Hospital Shoreline,
----------------- ---------------------------------
et. al, defendants, cause no. 03-60961-1 filed in the County Court, Nueces
County, Texas on June 30, 2003. The complaint alleges that the defendants
negligently caused the death of a dialysis patient in the defendant hospital.
The complaint alleges specifically that AngioDynamics and two other defendants,
including AngioDynamics' supplier, Medcomp, designed, manufactured, promoted,
distributed and/or sold one or more portions of the dialysis equipment
(including catheters) used in the treatment of the patient, and that the
equipment was defective and unreasonably dangerous. The complaint seeks money
damages in an unspecified amount. Under AngioDynamics' distribution agreement
with Medcomp, Medcomp is required to indemnify AngioDynamics against all its
costs, expenses, its losses, liabilities, expenses (including reasonable
attorneys' fees) that relate in any way to products covered by the agreement.
AngioDynamics has tendered the defense of this action to Medcomp. Medcomp has
accepted defense of the action, conditioned upon the identification of the
catheter used to treat the patient as a Medcomp product.
Item 2. Changes in Securities and Use of Proceeds
-----------------------------------------
On November 1, 2003, the Company issued 2,000 shares of common stock to its
Chairman of the Board, Howard S. Stern, and 1,000 shares of common stock to each
of the following directors of the Company: Robert J. Beckman, Michael A. Davis,
Paul S. Echenberg, James L. Katz, Donald A. Meyer, David P. Meyers and George P.
Ward. All such shares were issued in consideration for services rendered as
directors and were issued pursuant to Section 4(2) of the Securities Act of
1933. The basis upon which the exemption is claimed is that the issued shares
were made only to directors of the Company.
Item 3. Defaults Upon Senior Securities
-------------------------------
None.
-31-
Item 4. Submission Of Matters to a Vote of Security Holders
---------------------------------------------------
At the Annual Meeting of Shareholders held on October 21, 2003, the following
persons were elected as Directors of the Company:
Class I Directors: (until the 2006 Annual Meeting)
-----------------
Michael A. Davis, M.D.
James L. Katz, CPA, JD
Anthony A. Lombardo
In this election, 8,869,402, 9,225,854 and 8,599,086 votes were cast for Mr.
Davis, Mr. Katz and Mr. Lombardo, respectively, and 1,128,810, 772,358 and
1,399,126 shares were withheld from voting for Mr. Davis, Mr. Katz and Mr.
Lombardo, respectively.
The following Directors continue in office for the duration of their terms:
Class II Directors: (until the 2004 Annual Meeting)
------------------
Robert J. Beckman
Paul S. Echenberg
Donald A. Meyer
Class III Directors: (until the 2005 Annual Meeting)
-------------------
Howard S. Stern
David P. Meyers
George P. Ward
The action of the Board of Directors in appointing Grant Thornton LLP as the
Company's independent auditors for fiscal year 2004 was approved by a vote of
9,920,744 in favor, 53,237 against and 24,231 shares abstaining.
In addition, the stockholder proposal urging the Board of Directors to allow a
vote by the Company's stockholders to institute a retroactive 18-year term limit
for all directors; provided, that the implementation of this proposal shall not
have the effect of shortening the term of any incumbent director, was defeated
by a vote of 904,590 in favor, 4,938,369 against, 2,713,325 shares abstaining
and 1,441,928 broker non-votes.
Item 5. Other Information
-----------------
None.
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits
--------
No. Description Page
--- ----------- ----
3.1 Restated Certificate of Incorporation of the Registrant, as
amended (a)
3.2 Bylaws of the Registrant, as amended (b)
31.1 Certification pursuant to Rule 13a-14(a)/15d-14(a) as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
(Anthony A. Lombardo) 35
-32-
No. Description Page
--- ----------- ----
31.2 Certification pursuant to Rule 13a-14(a)/15d-14(a) as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
(Dennis J. Curtin) 36
32.1 Certification pursuant to Title 18, United States Code,
Section 1350 as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 (Anthony A. Lombardo) 37
32.2 Certification pursuant to Title 18, United States Code,
Section 1350 as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 (Dennis J. Curtin) 38
(a) Incorporated by reference to Exhibit 3(i) to the Registrant's
Annual Report on Form 10-K for the fiscal year ended May 31,
1997, filed under Commission File No. 1-11479, and to Exhibit
1 to the Registrant's Registration Statement on Form 8-A filed
with the Commission on October 22, 2002.
(b) Incorporated by reference to Exhibit 3(ii) to the Registrant's
Annual Report on Form 10-K for the fiscal year ended May 28,
1994, filed under Commission File No. 0-13003.
(b) Reports on Form 8-K
-------------------
The following reports on Form 8-K were filed during the quarter ended November
29, 2003:
The Company filed a Form 8-K dated September 26, 2003 reporting information
under "Item 5. Other Events" and "Item 7. Financial Statements, Pro Forma
Financial Information and Exhibits" announcing the date of its first quarter
investor conference call and the date of its release of first quarter results.
The Company filed a Form 8-K dated October 9, 2003 reporting information under
"Item 7. Financial Statements, Pro Forma Financial Information and Exhibits" and
"Item 12. Results of Operations and Financial Condition" announcing its results
of operations for the quarter ended November 29, 2003.
The Company filed a Form 8-K dated October 20, 2003 reporting information under
"Item 5. Other Events" and "Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits" announcing that it was considering a spin-off and
initial public offering of its wholly-owned subsidiary, AngioDynamics, Inc.
-33-
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.
E-Z-EM, Inc.
----------------------------------------
(Registrant)
Date January 13, 2004 /s/ Anthony A. Lombardo
---------------- ----------------------------------------
Anthony A. Lombardo, President,
Chief Executive Officer and Director
Date January 13, 2004 /s/ Dennis J. Curtin
---------------- ----------------------------------------
Dennis J. Curtin, Senior Vice
President - Chief Financial Officer
(Principal Financial and Chief
Accounting Officer)
-34-